HB - The Legal Corner Magazine #Issue 2

Looking ahead to 2023 - A Banking and Finance Special.

EXPLORING THE LATEST TRENDS AND DEVELOPMENTS IN PROPERTY & CORPORATE LAW

IT'S THE ECONOMY, STUPID. ISSUE 002: Looking ahead to 2023 - Banking & Finance Special

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CONTENTS

In this Issue An introduction by Vijay Parikh, Managing Partner

The new Register of Overseas Entities James Oxley provides an overview of the law

Trends: Nutrient Neutrality Huseyin Huseyin considers how planning and development work is now more often challenged by environmental considerations

Reponsible lending in a time of instability Brooke Andrew of Kseye offers a lender's view on the current market condition

Online Poll Looking ahead to 2023, our LinkedIn audience shared their views and opinions on the economy 4 Corners Legal Podcast – Making sense of the economy on business lending, investment and restructuring. With James Oxley, John O'Donovan, Niten Chauhan and Simon Jagger of Resolve Group UK

Budget Bingo and the Tax Fallout of Trussonomics Andrew Waddell of Winslows Tax Law outlines the implications of the Autumn Budget

SDLT Ray Oshry explains how SDLT reliefs and exemptions are helping to drive investment

Showcasing expertise A highlight of some of the global events our team attended towards the end of last year

Harold Benjamin Case Study A site acquisition with planning permission for flats

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we provide some guidance for developers on dealing with planning demands.

Looking forward, we also cover how the current economic climate will affect lenders and businesses this year. We are grateful to Kseye and Winslow Tax Lawyers for their input in that regard. The impact of the economy on businesses is also discussed in our 4 Corners Legal Podast. The wider political and commercial context of 2022 – military action, pandemics, inflation, concerns about the environment, political goals and public opinion once again highlighted the interconnectedness of modern global economy. The previous divisions between spheres and sectors are increasingly less clear. This is seen for example in the way that responsible money lending and SDLT are to do with tying commercial and legal incentives to political imperatives as much as business needs. These issues are also covered in our Four Corners podcast, in which our finance & restructuring teams discuss the economic outlook for lenders and borrowers together with Simon Jagger of Resolve. Finally, we are pleased to review some of the events we attended last year, to include our John O Donovan’s panel appearance at the Finance Professional Show and Niten Chauhan’s inclusion as a keynote speaker at the LawAsia Conference where he shared a stage with the Law Society on sanctions effecting businesses; together with a review of some of the property related legal changes which may impact investor risk and funding across commercial and residential properties. We welcome your feedback, and hope you find the content helpful. Wishing you all the best for 2023.

In this issue Whilst we look forward to 2023, we also wanted to take the opportunity, in this 2nd edition of our Legal Corner magazine, to review and reflect on some of the legal trends we saw for businesses, with a particular focus on access to finance, as well as the regulatory environment. Our team at Harold Benjamin is pleased to have analysed shifts in consumer spending, the economic landscape and the legal landscape last year. From the impact of the cost of living crisis on anti-competitive practices by supermarkets and the consequences for larger retailers (see Anti- competitive practice and land agreements >) through to advice to businesses on the continued business cost of covid on rental arrears (see COVID-19 Rental Arrears >) and legal updates following leasehold reforms and cladding legislation – we covered some of the most impactful legal changes of 2022, many of which will be more fully realised in 2023. Please feel free to visit the Insights area on our website for articles on these topics. > To this end, one of the key changes we flagged last year relates to The new Register of Overseas Entities. In this edition, we will look at what this means for lenders of finance. We also considered how planning and development work is now more often challenged by environmental considerations, and as part of the #trends series of articles,

VIJAY PARIKH Managing Partner

Click to connect with Vijay on LinkedIn

vijay.parikh@haroldbenjamin.com

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BY JAMES OXLEY Partner, Corporate & Commercial

The Register of Overseas Entities was created at Companies House on the 1st August 2022. It requires overseas entities that own land in the UK, or have a lease on UK property for 7 or more years, to register the details of their beneficial owners. 'Overseas entities' in this context are broadly speaking non-UK companies and other bodies. Unusually for UK law it will have retrospective effect - any overseas entities that purchased or leased land in England or Wales on, or after, 1 January 1999 will need to register the details of their beneficial owners. This needs to be carried out by 31 January 2023. As will be discussed below, real estate lenders’ loans and new lending are particularly impacted by the changes. .

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"FAILURE TO REGISTER NEW PROPERTY ACQUISITIONS WILL MEAN THAT HM LAND REGISTRY WILL NOT REGISTER THE OVERSEAS ENTITY AS THE OWNER OF THE LAND."

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Background A Register of Overseas Entities was announced by David Cameron back in 2016 at an anti-corruption summit held in London. Other jurisdictions also confirmed they would take similar steps, though notable exceptions included the USA and the British Virgin Islands. The purpose of the development of a register was to target economic crime so that criminals could no longer purchase property in the UK and hide behind complex corporate structures to cover who actually owned the property. It has taken some time for the bill drafted back in 2018 to materialise into the Economic Crime (Transparency and Enforcement) Act 2022, finally hastened by the Russian invasion of the Ukraine and the fresh desire to identify property linked to Russia and money laundering generally. Steps that need to be taken 'Overseas entities' are broadly corporations, partnerships or other entities which are recognised by a foreign jurisdiction as having a legal personality. Where an overseas entity has purchased property, or has taken a 7 year or more lease, in England and Wales since 1 January 1999 it has until 31 January 2023 to report its beneficial ownership to Companies House. Furthermore, any future property purchases or leases (of 7 years or more) by overseas entities are required to be registered at Companies House, with the register being a publicly available record.

the land. Not only is the failure of an overseas entity to register property purchased/leased in England and Wales after 1 January 1999 a criminal offence - with every officer potentially facing criminal charges including fines and prison sentences - it will also mean restrictions being placed on the property to prevent any type of disposition, sale, or handling. Lenders, borrowers and charges Lenders to overseas entities will need to ensure finance documents are updated to include obligations for overseas borrowers to comply with registration requirements and make failure to do so an event of default. Lenders will also need to be mindful of acting in matters where there is a lack of transparency around the beneficial ownership of an overseas entity. The more complex the structure of the entity, the longer it will take from both a due diligence and registration perspective. Conclusion Where there are any questions about ownership and disposal of a property asset owned by an overseas entity, legal advice taken in a timely way will prevent criminal and other financial implications for investment property.

If you have any questions about the issues raised in this article, please contact James Oxley to discuss further.

Click to connect with James on LinkedIn

Failure to comply Failure to register new property acquisitions will mean that HM Land Registry will not register the Overseas Entity as the owner of

james.oxley@haroldbenjamin.com

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REGULAR FEATURE

Nutrient Neutrality – What is it and how is it relevant to property developers and financing

consents where an outline consent has been secured). Ongoing projects have stalled - not just due to compliance with nutrient neutrality but also because of chronic under-funding and lack of resources. How can this impasse be addressed? Solutions Natural England has published a nutrient budget calculator which has been further adapted by the affected local authorities. This calculates the total annual nitrogen load that must be mitigated by a scheme, based on assumptions such as a default occupancy rate of 2.4 people per dwelling. Developers need to submit a calculation in support of their planning application -a useful tool in determining whether a scheme is likely to be impacted by nutrient loading. Solutions implemented by developers also include on-site mitigation measures such as the retrofitting of Sustainable Urban Drainage System (Suds), the creation of treatment wetlands, package treatment plants and off-site measures, more applicable to large scale developments, such as taking land out of agricultural production by third party landowners thereby creating a credit which equates to the amount of nitrogen being produced by a site. The credit is then sold to developers to mitigate the likely nitrogen and or phosphate output. Any agricultural land must be within the same catchment area as the proposed scheme. It is important to note that local authorities have different processes and approaches to mitigation. For example, Portsmouth City Council has indicated that the credit system should only be used as a last resort measure and Havant Borough Council became the first local authority to create a mitigation scheme by gradually turning a site formerly used as a dairy farm into a nature reserve. A payment of £1,308 per 1kg of nitrogen contribution (increased

BY HUSEYIN HUSEYIN Partner, Head of Development and Planning

As part of our legal trends series, we focus once again in the interplay between the environment and development. Nutrient neutrality is said to be the reason why around 120,000 planning applications have stalled, according to the Home Builder Federation. Nutrient neutrality is the idea that the number of nitrates entering a water system can be offset by the removal of an equivalent number of nitrates. The concept arose out of a 2018 European decision (subsequently applied here ) which ruled that the release of nutrients into protected conservation areas is unlawful. The reason being that excess nutrients (like nitrogen and phosphorus) lead to the loss of habitats. It is widely held the developments have just such a polluting impact – particularly through additional sewage and waste, run-off from construction etc. Consequently, Natural England issued guidance to some local authorities stating that planning permissions should not be granted unless a development can achieve ‘nutrient neutrality’. Since March 2022 almost 74 local authorities have been affected by Natural England’s guidance. These local authorities, in taking a broad view, have applied it to the grant of every new planning consent (including reserved matters

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annually) would need to be paid to the local authority along with a legal administration fee.

Factor in potential delays and additional costs into a development programme. Where contracts are conditional on planning consider extending any long-stop dates. Consider acquiring more land that cannot be developed from the seller (or local third party) to account for on-site mitigation.

A pilot online auction platform was launched by the government in 2020 enabling developers to bid and purchase credits to mitigate nitrogen loading onto protected sites. If successful, this could be rolled out nationally. Finally, it is also paramount that finance terms are properly considered so that loan terms aren’t unduly onerous or fail to tackle the issues which might arise because of a failed assessment, for example. Suggestions and recommendations Until clear guidance is provided as to the correct approach in dealing with nutrient neutrality, the following should be considered by developers: Due diligence must be undertaken prior to acquisition of a site or during any preplanning investigations by checking whether a scheme is within the catchment area of a protected site. A site with the benefit of an outline planning consent may not be implementable unless a nutrient mitigation strategy is agreed with the local authority. Engage with water quality technical specialists and ecologists who are familiar with wastewater treatment and the effects of nutrient on the local environment respectively, and consider the cost of implementing any subsequent proposals. If a development site is within a protected area, use a nitrogen budget calculator to determine any excess nitrogen that would need to be removed and liaise with a specialist to determine how best to implement any mitigation strategy. Find out where wastewater from the site will drain to, particularly if the site is located on the edge of a catchment area as it is possible that the wastewater drains to water treatment works outside of the catchment.

Loan terms should be properly considered to deal with potential delays.

Conclusion The reduction in environmental pollution is on the government’s green agenda and the emergence of ‘nutrient neutrality’ did not come as a surprise. Developers are having to adapt their schemes, taking into consideration that the likely environmental impact of their developments will lead to delays and increased costs. It is thought that more and more local authorities will be added to Natural England’s list thereby affecting many more future projects. Therefore, developers should ensure they plan ahead and work with local authorities, water companies and government agencies to achieve cost-effective, sustainable solutions.

Please contact Huseyin Huseyin for any of the issues in this article.

Click to connect with Huseyin on LinkedIn

huseyin.huseyin@haroldbenjamin.com

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RESPONSIBLE LENDING IN A TIME OF INSTABILITY

BY BROOKE ANDREW Underwriting Team Leader, KSEYE

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In the second half of 2022, many people trying to acquire new properties were affected by the ongoing financial volatility, seeing the Bank of England raise the base rate of interest multiple times. This climate has seen mainstream lenders increase their rates, reduce product ranges, and withdraw products entirely, often with little or no notice. Specialist property lenders, such as those who provide bridging and hybrid buy-to-let loans like KSEYE, also had to react to the pressures of an increasing base rate – not just with product interest rate increases, but by placing even more importance on responsible lending than they had in stable or buoyant times.

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However, sometimes exits do not occur as planned, and just as a borrower would not want to end up paying higher interest rates, fees or losing their security property, a lender does not want a loan book that is not performing as expected. For this reason, it is important to both borrowers and lenders that loans are underwritten responsibly, and this is especially true in times of financial instability where the property market may be in decline.

Specialist property lenders – providers of short-term finance

Borrowers who opt for short-term specialist loans always have a reason for doing so. For example, they may require finance to take advantage of an investment opportunity faster than a mainstream lender can provide funds, or they may not be able to obtain a loan from a mainstream lender due to the specifics of the property or their credit history. Regardless of the reason, the basics of specialist property finance remain the same – the borrower will offer up a property as security to obtain the loan, with the knowledge it is at risk if they cannot repay the debt when it falls due. Because specialist property loans are always short-term, a lender needs to be confident that the borrower can exit the loan before proceeding further. A successful exit can take various forms, such as refinancing onto a longer-term product or selling the property.

What is responsible lending?

Responsible lending, amongst other things, is about ensuring that the borrower has the best chance of a successful exit, and restricting lending where there is no plausible exit strategy. In practical terms, this means that a thorough assessment of the borrower’s intended exit will be required, ensuring that it is considered viable. Where the intended exit is to refinance onto a longer-term loan, this would involve assessing the likelihood that the borrower and the property will be accepted onto a product from the preferred refinance lender, or otherwise assessing if a suitable loan will be available from another

"RESPONSIBLE LENDING, AMONGST OTHER THINGS, IS ABOUT ENSURING THAT THE BORROWER HAS THE BEST CHANCE OF A SUCCESSFUL EXIT, AND RESTRICTING LENDING WHERE THERE IS NO PLAUSIBLE EXIT STRATEGY."

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Looking ahead – property market stability in 2023?

mainstream lender. A detailed review of the proposed lenders’ lending criteria will be required, including stress tests and Interest Coverage Ratio (ICR) requirements. Where the planned exit is a sale, this means working with a reliable valuation partner and trusting their expertise on both the accuracy of their valuation as well as their advice on how long it will realistically take to achieve a sale. If there are concerns about the ability to achieve a sale within the required time frames, further safeguards may need to be implemented to ensure a successful exit. These can include asking that the property is marketed for sale by a specific date, or doing additional research into recent sales of similar properties in the local area. By taking steps like these, responsible lenders do as much as they can to ensure that they only offer loans that a borrower is highly likely to be able to exit successfully. This leaves the borrower with either an ongoing investment for their property portfolio or a profit from a property they were able to sell at a higher price than they purchased it for.

Although 2022 was a volatile year for the property finance market, there are positive signs ahead in 2023. While the Bank of England base rate is likely to rise further before it begins to fall, borrowers will find a more stable market, with products priced appropriately for the current circumstances from both mainstream and specialist lenders. This will increase the number of opportunities that property investors will be able to take advantage of, and lenders like KSEYE, who have an ethos of responsible lending, will be well-placed to facilitate such opportunities.. For further information please contact Brooke Andrew, Underwriting Team Leader at KSEYE. KSEYE is a specialist property finance provider offering bridging and hybrid buy-to-let finance, having completed 800+ loans totalling over £500m to date. Learn more at www.kseye.co.uk

Click to connect with Brooke on LinkedIn

brooke@kseye.co.uk

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RESEARCH

LOOKING AHEAD TO 2023 ONLINE POLL

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most vulnerable of a decade or more of low growth and rising inequality.

Looking forward to 2023, we ran a series of online polls to gauge the mood amongst our professional audience on LinkedIn. From the poll results, we can see that people seem to take a relatively split on whether the steps taken by the Government to tighten the public purse, whilst raising taxes will have a positive long term effect, or whether these will simply exacerbate already existing long term impacts on the

It seems that a favourable investment climate would have lower interest rates, allowing for greater returns on investment. At the same time, it is clear that flexibility in financial products is more highly prized than the cost.

Yield revenues remain the most important driver for ongoing property investment?

What do you believe is the biggest challenge to growing the economy?

High Interest Rates 41%

Staff Shortages 23%

Yes 100%

Energy Prices 32%

Other 5%

Do you see th squeeze on public services as necessary, or another "own goal"?

Access to finance has to be more...

Strictly Regulated 18%

Own Goal 55%

Flexible 55%

Cheaper 27%

Necessary 45%

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Alongside all of this tumult, various domestic legal is- sues have also impacted investment decisions in the property sector, risk and funding. Last year saw legal changes that added further complexities to this tricky economic climate for investors and for those raising funds. For example, investigations by the Competition & Market Authority into anti-competitive practices and land agreements have placed larger retailers under greater scrutiny due to long-standing concerns that improper practices such as land banking were being used to deliberately limit competition and therefore having a knock-on effect on consumer choice and prices in local areas. Lawyers acting for such retailers should be mindful of these anti-competitive practices, which could result in large fines, closures or other costly and time-consuming regulatory action. Retailers are therefore advised to ensure that finance and funding for investigations and fines are considered as part of on-going legal and commercial costs. Through all this, the business shocks of Covid continue to reverberate. Though landlords are still able to pursue outstanding rent via debt recovery processes, a delayed ability to recover outstanding debts has come at the same time as economic uncertainty - leading some commercial landlords to weigh up the risk of eviction/debt recovery against possibly empty spaces. On the residential front, cladding related regulations in response to the 2017 Grenfell Tower fire have proven to be problematic for leaseholders, particularly where remedial action is needed. In these cases, flat-owners have found themselves trapped: liable for the onerous costs associated with rectifying unsafe cladding but unable to sell or re-mortgage. To help our clients make sense of it all, Harold Benjamin experts James Oxley, John O’Donovan and Niten Chauhan came together with Simon Jagger, partner at independent advisory and investment house Resolve Group UK, to work through what this all means for both individuals and businesses. Together they consider the impacts on raising finance, the steps businesses can take - including advice on re-structuring, the emerging trend away from tech fundraisers towards bricks and mortar and the resulting challenges for investment. During the podcast, the team also discuss the reasons why businesses don’t seek professional advice in trying times.

THE FOUR CORNERS LEGAL PODCAST

In this podcast: Making sense of the economy on business lending, investment and restructuring

2022 will be remembered as yet another eventful and testing year, as the UK went through a series of social, political and economic upheavals. Whilst the country was still coming to terms with the aftermath of the pandemic, Europe was shaken by the Russian invasion of Ukraine, the economic consequences of Brexit began to bite, and the government was hit by further scandal, with two Prime Ministers deposed. Furthermore, a disastrous mini-budget damaged Britain’s finances and reputation, swathes of workers voted to strike, recession loomed over the horizon and millions of people faced real hardship because of inflation, spiralling energy prices and tax rises. Domestic political instability has exacerbated international cross-border economic challenges such as staff shortages, supply chain issues, concerns around money laundering, and the global inflationary pressures of Covid and the Ukraine invasion on food and fuel costs. In turn, the impact was felt on the cost of lending and the wider commercial climate.

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Click to connect with Niten on LinkedIn

niten.chauhan@haroldbenjamin.com

Click to connect with James on LinkedIn

james.oxley@haroldbenjamin.com

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john.odonovan@haroldbenjamin.com

Click to connect with Simon on LinkedIn

simon.jagger@resolvegroupuk.com

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B GE BINGO AND THE TAX FALLOUT OF TRUSSONOMICS

BY ANDREW WADDELL Managing Partner, Winslows Tax Law

What a year 2022 was –three prime ministers and four Chancellors of the Exchequer……it could be hard to keep track! Besides a leadership challenge, the mini-budget presented by Kwasi Kwarteng on 23 September 2022 caused such an earthquake amongst the financial markets that most of the announcements were reversed within a matter of weeks. So where are we now? The changes originally announced in Kwarteng’s mini-budget included: a reversal to the planned increase of the headline rate of Corporation Tax to 25%, the increase in the 0% band for Stamp Duty Land Tax from £125,000 to £250,000, a reduction of the basic rate of Income Tax to 19%, reversal of the 1.25% National Insurance (NIC) and dividend increase, the abolition of the off-payroll IR35 rules and, more importantly, the abolition of the additional rate income tax band. Following the “Mini-Budget”, the “Autumn Statement” was originally supposed to be merely a ‘Medium Term Fiscal Plan’ following the Office of Budget Responsibility’s economic and fiscal forecast, focussed largely on supply-side policies and addressing economic stability. However, following Kwarteng’s sacking, the new Chancellor Jeremy Hunt needed to turnthe Autumn Statement into a new full Budget which was given on 18 November 2022.

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The Autumn Statement announcement was very different from the mini-budget two months prior, it included:

A reduction of dividend allowance from £2,000 to £1,000 from April 2023, then down further to £500 from April 2024

An increase in the Energy Profits Levy (aka the ‘windfall tax’) from the existing 25% to 35%, taking effect from January 2023 until March 2028 and the introduction of a temporary levy on electricity generators of 45%.

An extension of the freeze of Inheritance tax Nil Rate Band and Residence Nil Rate Band (£325,000 and £175,000 respectively) from 2026 to 2028

From April 2023, the Research & Development deduction

for SMEs will drop from 130% to 86%, with the credit rate going down from 14.5% to 10%. For large companies the expenditure credit will be increased from 13% to 20%.

A freeze of income tax, NIC bands and the personal

allowance for a further two years. (These had already been frozen until April 2026, but they will now stay in place until 2028.) A reduction to the starting point of the newly-resurrected income tax additional rate from £150,000 to £125,140 from April 2023. (£125,140 is the point at which an individual will have completely lost their personal allowance, so the 40% marginal rate gap between £125,140 and £150,000 will be removed; having lost their personal allowance, an individual will move straight into the 45% band.)

VAT

VAT registration/deregistration thresholds frozen at £85,000 and £83,000 respectively until April 2026

Time limiting the new £250,000 SDLT 0% band for residential properties announced in the mini-budget, as well as the first-time buyers’ threshold which increased from £300,000 to £425,000, until 31 March 2025

The Capital Gains Tax (CGT) annual exemption reduced from £12,300 to £6,000 from April 2023, then to £3,000 from April 2024

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A rate of 25% will now apply to profits above £250,000, with the existing 19% applying where profits are below £50,000 and a marginal rate in between (3/200ths marginal fraction). The full 25% will apply to Close Investment Holding Companies. Also, the rates of dividend income tax will increase to 8.75%, 33.75% and 39.35 (basic, higher and additional rate respectively) from April 2023 – the planned mini-budget decrease by 1.25% also being cancelled.

Reducing the additional rate band to tally with the point at which the personal allowance is extinguished will clearly bring more individuals (around 1.1 million by 2025/26) into the additional rate and bring in a further £855 million by 2027/28. Politically, this also steals the thunder somewhat from Labour who were determined to reinstate the additional rate and at one point to increase

What survived the mini-budget?

The short answer – not much. The 1.25% increase in NIC rates were indeed reversed, and the SDLT changes remain (though only until 2025 now). What’s the significance of the autumn statement? What can we expect going forward? In many respects, this was the budget update which should have been given in September 2022. Whilst the mini-budget was a very Tory budget, it was clearly in the wrong environment and failed to ‘read the room’, the result of which was the market and pound crashing and a flourish of interest rate increases, as well as the King appointing a new Prime Minister and Chancellor of the Exchequer. Whilst cutting taxes was the aim of the government, it just didn’t suit the current economic situation; Jeremy Hunt’s counter-intuitive higher tax budget seems to be what was needed. It could have been more drastic – there were rumours swirling around about increases in the rates of CGT, reforms to inheritance tax, abolition of non-domicile (‘non-dom’) rules, none of which came about. The continued use of fiscal drag to raise revenue in the form of frozen income tax bands, personal allowance and the inheritance tax nil rate band were all anticipated, but the reduction of the additional rate band, and of the dividend allowance and CGT annual exemption was not something one would expect a Conservative chancellor to do – especially when considering his predecessor abolished the additional rate altogether!

"WHILST CUTTING TAXES IS THE ULTIMATE AIM OF ANY CONSERVATIVE GOVERNMENT, JEREMY HUNT'S COUNTERINTUITIVE

BUDGET SEEMS TO BE WHAT WAS NEEDED."

that to 50% and takes a bit of pressure off the Scottish government. The divergence between Scottish income rates higher rate band and that in the rest of the UK has been apparent for some time, but with the UK additional rate taking effect at £125,140 from 2023, with Scotland’s at £150,000, means that the higher tax burden in Scotland compared to the rest of the UK will lessen. The reduction in the dividend allowance will likely have relatively little effect on business owners (the corporation tax increase being more of a concern) – this allowance being aimed primarily at those individuals holding a small number of shares as investments. After April 2024, these individuals with dividends over £500 will have to inform HMRC of this income and start paying tax on it.

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Likewise, those not already registered for self-assessment and with capital gains below the annual exemption need not trouble HMRC, however, with an exemption at £6,000 (not seen since 1995-96) those with gains above this amount will be obliged to report the disposal to HMRC. Whether they need to report their situation to HMRC due to dividends or capital gains (or both), and irrespective of the extra income tax/ CGT these individuals will have to pay after 2023, it's perfectly possible that many people won’t be aware of their newly imposed compliance obligations. The increase in the energy windfall tax is likely to be a politically expedient move, given the concern of the energy and cost-of-living crisis. In addition, it is likely to raise over £40 billion over the six-year window, with the new electricity generator levy raising a further £14 billion - going some considerable way to closing the country’s eye-watering debts. If you have any questions about the content in this article, please contact Andrew Waddell at Winslows Tax Law.

Click to connect with Andrew on LinkedIn

andrew@winslows.co.uk

Loving our magazine?

If you are a property or funding specialist and would like to contribute to this magazine we would love to hear from you. To submit an article, or for other ways in which your business can feature in this magazine, please send an enquiry to marketingteam@haroldbenjamin.com

For previous issues please click here >

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How reliefs and exemptions are helping to drive investment

BY RAY OSHRY Partner, Head of Commercial Real Estate

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work, or a property trader purchases a dwelling from the personal representatives of a deceased individual, then subject to certain preconditions, SDLT is not applicable. In both cases, these are investments outside of simple home ownership. 'Chained' purchases We can see preferential treatment in investment situations where property investors step in to purchase a home from an individual who is in a chain but cannot complete on a purchase, or if a property trader (or building company) buys a home from someone who is buying a new home from them in turn. In these cases, again subject to certain conditions, property investors will be exempt from paying SDLT. Uninhabitable Conditions Commercial stamp duty rates can apply where a property is in an uninhabitable condition (though this isn’t technically a relief or an exemption) this shows that where there is some investment, there is a different tax treatment. Transfer to connected companies Finally, and perhaps the most interesting example of the use of SDLT to encourage property investment and development behaviour is seen in certain circumstances where SDLT is not applied on the full value of a property when it is transferred to a connected company, but rather the purchase price instead for instance. Overall, we can see that the way stamp duty is applied can encourage investment, development and activity in the property sector. The content of this article is for information purposes only. For more specific advice please contact Ray Oshry

Most people will have come across stamp duty land tax (SDLT) at some point – it is the tax payable on the purchase of residential properties worth over £250,000 or non- residential properties worth over £150,000. If you have ever purchased a property, you will know that SDLT is calculated according to the price paid. In some circumstances, reliefs or exemptions are available, for instance where someone is a first-time buyer, or where a property is for charitable purposes. However, there are lesser-known areas where SDLT relief and exemptions is also available - such as where property investors or employers purchase residential properties for investment, development or trade purposes.

Multiple dwellings Where a company purchases multiple

dwellings as part of a single deal (or a series of linked transactions) multiple dwelling relief can help reduce the overall SDLT liability. It does not matter whether the units are all residential or not, or whether these are freehold or leasehold. This encourages creative development solutions. Purchase for reasons other than ownership How SDLT relief is used for informing different economic behaviours is also seen where a company purchases a residential property for letting purposes. In this case, relief can be claimed where a residential company property is purchased for more than £500,000 and where the investment is linked to things such as trade development, or where it will be occupied by an employee. As can be seen, where economic activity is linked to the purchase, and the purchase is not made for residential reasons alone, then SDLT relief may be claimed. If not claimed, SDLT is payable at a penal rate of 15%.

Click to connect with Ray on LinkedIn

Similarly, where an employer purchases a property for an employee who has to move for

ray.oshry@haroldbenjamin.com

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EVENTS

Harold Benjamin

SHOWCASING EXPERTISE AROUND THE WORLD. Both within the UK and abroad, we are pleased to have strengthened our network and built new relationships with appearances at key events.

EVENTS

John O’Donovan @ Finance Professional Show John O’Donovan, Harold Benjamin’s Head of Banking and Finance was the legal lead on a panel discussing commercial lending at the Finance Professional Show. The event was an opportunity for funders and service providers catering to borrower needs, to provide insight and information to the wider industry covering property, development, equity and debt funding and much more. John is a Banking & Finance Partner with over 15 years of experience across the financial services sector, advising on all aspects of banking and finance for a wide spectrum of lender and borrower clients. These include leading providers of senior and mezzanine debt, bridging lenders, property developers, portfolio landlords and high net worth individuals. He brought his significant experience and expertise in high value property finance, restructuring and development finance transactions to the high-profile event at London Olympia, providing funding and service provision insights to financial professionals working in the property, development, equity and debt funding and many other sectors. The panel discussion covered commercial lending and some of the recurring issues for investors and private purchasers alike such as how lenders viewed commercial and residential

splits. In this regard, it was apparent that lenders would be keen on understanding experience, affordability, the quality of the borrower, management expertise, industry knowledge and proof of performance. John O'Donovan made the following key interventions from a legal point of view: lenders are interested in the strength of the tenant and the realistic ability to stick to financial covenants. Further, that in the case of foreign nationals and off-shore structures, the overall footprint in the UK is worth considering, and so from a money laundering and compliance perspective, it is crucial that there is transparency as to who the ultimate beneficial owner is in any given transaction.

Click to connect with John on LinkedIn

john.odonovan@haroldbenjamin.com

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Robert Souber @ MAPIC Robert Souber, Head of Retail & Leisure represented Harold Benjamin at MAPIC in Cannes, France. MAPIC is a prestigious international retail property market event for property players and cities aiming to build the ultimate lifestyle and shopping destinations – one the most significant events for the retail, hospitality and entertainment industries. To support luxury retail, multiple outlet retail, restaurants, bars, pubs, health, fitness and hotels, with a view to re-shaping commercial areas and high roads, Robert Souber explained this: our work ranges from acquiring leases in London’s most expensive and desirable locations such as Bond Street and Sloane Street and other key retail destinations such as Bicester Village through advising on restructuring and re- gearing property interests. Our experience extends to roll-out programmes, disposals of existing leasehold interests, property portfolio advice and management, franchising and overseeing the real estate aspects of the disposal of Stakes in connected and parent companies. We advise new F&B concepts, as well as established brand names. By having real experience in supporting key investment decisions, lawyers can add significant economic value to any transaction.

Robert Souber said this of the 4-day event: “We are really pleased to have attended MAPIC. As a firm which has an extensive track record in retail and leisure, this event helps us to stay relevant, to ensure we maintain sector specific market knowledge and to meet familiar and new faces. We are always keen to connect with key individuals and share thoughts and opportunities.”

Click to connect with Robert on LinkedIn

rober.souber@haroldbenjamin.com

EVENTS

Niten Chauhan @ LAWASIA Niten Chauhan, Head of Restructuring and Insolvency and Law Asia Vice Chair shared a platform with the Law Society President, Lubna Shuja at the Law Asia conference in Australia during which the impact of sanctions, in particular in the context of the Russia/Ukraine conflict was the subject of Niten’s key note speech. Sanctions are tools used by many countries, to force a change in behaviour, compel a country to follow a specific course of action or to communicate a political message. It’s of course only pragmatic to acknowledge that Russia is a major energy supplier and that Ukraine supplies wheat and grains to the world. As a result, the invasion of Ukraine and subsequent sanctions have had global economic effects adding to a sense of turmoil just as the world began to recover from the Covid-19 pandemic. Ukraine is unable to export its food products as fighting has closed the country’s Black Sea ports, blocking its exports of wheat, corn, sunflower oil, and other goods, and the restricted energy supply from Russia has meant higher energy and fuel prices for consumers. At the same time serious questions as to the development of long term and sustainable energy strategies for the UK are now finally being asked.

In considering the effects of the new sanctions regime for the UK, it is worth noting the new environment following Brexit – this has given the UK more leeway in adopting an approach which might be closer to the US style of imposing sanctions, than that of Europe. For example, the use of travel bans and asset freezes on entities or individuals where there are reasonable grounds to suspect serious corruption are similar in style to the US, rather than the EU. Additionally, coordinated sanctions across Europe and the US, targeting Russia’s financial, aviation and shipping sectors, other strategic sectors of the economy such as defence, aerospace and energy, together with individuals close to the Putin regime, aim to weaken the ability of Russia to raise capital and continue its campaigns - indicating a new willingness for greater co-operation on security and safety. By way of example, the practical outcome of these changes means that regulators, such as the Financial Conduct Authority (FCA) are empowered to receive and deal with voluntary reports of sanctions breaches from authorised firms and their employees. Overall, stricter obligations around accepting money transfers from or to Russia, and a greater awareness of the impact of money laundering

has meant that the UK can use this opportunity to be a key player in providing legal services to the global community, whilst at the same time the current conflict and resulting sanctions could mean a greater awareness of the benefits of long-term planning for energy security. Niten undertakes insolvency and litigation instructions both for corporate clients and individuals in the UK, Europe, the Middle East and Asia.

Click to connect with Niten on LinkedIn

niten.chauhan@haroldbenjamin.com

SITE ACQUISITION WITH PLANNING FOR FLATS Harold Benjamin Case Study

THE LEGAL CORNER MAGAZINE | ISSUE 002 JANUARY '23 | BANKING & FINANCE SPECIAL HB 30

The Commercial Real Estate department at Harold Benjamin were instructed earlier this year on the acquisition of a vacant commercial property. The site had the benefit of planning permission which allowed for the demolition of the current building and the subsequent development of eight residential flats. The purchaser, a sophisticated property developer, used their own construction team for the build. This client was represented by David Eder.

Ensuring that completion took place on the contractual completion date

Harold Benjamin is able to provide comprehensive advice on all types of property acquisitions. For further information about build projects which have existing planning permission, or require this, please contact David Eder for further information.

The work carried out in this matter included:

Reviewing the contract pack/title documents and ensuring that any present covenants did not adversely affect or prohibit the proposed development

Click to connect with David on LinkedIn

Advising on search results (to include full utilities searches)

david.eder@haroldbenjamin.com

Reviewing and amending the purchase contract and negotiating architect’s licences

Advising on planning documents, Community Infrastructure Levy, Building Regulations and New Build Warranties Acting for the client in their capacity as the borrower in connection with the development loan being taken out, to include (inter alia) liaising with the lender’s solicitor, attending to due diligence enquiries and advising on the security documents Facilitating the signing and engrossment of all documentation (to include conveyancing and security documentation) in readiness for completion

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