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Legal developments set to shape the UK’s Real Estate sector in 2025

As we settle into 2025, with a new Labour Government, will we start to see the impact of their ambitious policies to grow the economy, promote sustainable development, regional growth and investment in infrastructure outlined in the Invest 2035 strategy? 

Against this backdrop, we have outlined the legal developments affecting real estate this year.

Green Leases

ESG issues will have continued importance for landlords, occupiers and investors as they look to achieve their own sustainability targets and support the Government's goal of achieving Net Zero emissions by 2050. This encompasses not only the environmental performance of the premises but extends to include positive social impacts for local communities and areas. Green lease drafting continues to develop to reflect these broader ESG issues and in January 2024, the Better Buildings Partnership published an updated version of its Green Lease Toolkit; a collection of green lease provisions and guidance aimed at improving the sustainability of commercial buildings. This updated toolkit also introduced "responsible" lease provisions given the increased demand for leases to address social issues. Examples include working with local charities, offering apprenticeships to local residents and engaging in local supply chains and businesses.

Whilst the toolkit has no legal or regulatory status, it provides a clear framework for incorporating environmental and social issues into the leasing process, and green leasing, encompassing social impact, will remain an evolving area for real estate clients in 2025.

Terrorism (Protection of Premises) Bill (also known as Martyn’s Law) 

The Terrorism (Protection of Premises) Bill 2024 (also known as Martyn’s Law, in tribute to Martyn Hett who was killed alongside 21 others in the 2017 Manchester Arena attack ) is currently progressing through Parliament and is expected to become law this year. The initial draft bill was published by the previous Government but the King's Speech on 17 July 2024 confirmed that it is a priority for the new Government; it was one of the key pledges in the Labour Party manifesto.

The Bill’s scope is wide ranging and imposes a new UK wide “protect duty” on those responsible for certain public premises and events, requiring them to take appropriate action to strengthen public safety, with requirements reflecting the size of the venue and the activity taking place. There is a tiered approach, linked to the size of the venue, how many people may be there at the same time and the activity taking place, making sure undue burdens are not placed on small businesses.

The standard tier regime will apply to qualifying premises with a capacity of more than 200 but fewer than 800 people who may be present at the same time. These are premises wholly or mainly used for a qualifying activity including retail, the sale of food or drink, pubs, nightclub and entertainment venues, hotels, museums, galleries, healthcare and education. The responsible person (see below) will be required to:

  • notify the new regulator the Security Industry Authority (SIA) of their premises; and
  • have in place “appropriate and reasonably practicable” public protection procedures i.e. tailored to the specific circumstances of the premises.

These businesses will be asked to undertake simple, low-cost yet effective activities to put in place procedures to reduce harm to the public in the event of an attack. The aim of these requirements is to improve staff preparedness and responses and there is no requirement to put in place physical measures. Examples could be as simple as training staff to lock doors, close shutters and identify a safe route to evacuate.

The enhanced tier regime will apply to premises and events with a capacity of more than 800 individuals who may be present at the same time. Given the devastating impact an attack could have in these spaces businesses will be required to:

  • notify the SIA that they are responsible for the premises or event;
  • have in place “appropriate and reasonably practicable” public protection procedures that could be expected to reduce the risk of physical harm being caused to individuals if an attack was to occur there or nearby;
  • have in place “appropriate and reasonably practicable” measures that could be expected to reduce both (i) the vulnerability of the premises or event to an act of terrorism occurring, and (ii) the risk of physical harm being caused to individuals if an attack was to occur there or nearby. For example, an enhanced duty premises will be required, insofar as reasonably practicable, to put in place measures such as CCTV or hiring security staff;
  • document the public protection procedures and measures in place, or proposed, and provide this document to the SIA.

The responsible person may be an individual, but in many cases it is anticipated to be an organisation and will differ depending on whether they are responsible for the premises or an event. For premises, it will be the person who has control of the premises in connection with one of the uses identified in the Bill. This will usually be the premises operator; for example, if a person leases a building for retail use as a shop and is in control of the building for that use, they will be the responsible person. It is possible for there to be multiple responsible persons, for example, in a shopping centre, the retail lease tenant will be the responsible person, provided the lease confers on the tenant sufficient control of the property. However, the landlord that holds the lease for, and operates, a shopping centre might also be the responsible person.

For qualifying events, in most cases the responsible person will be the event organiser, but it will depend on who maintains control of the site.

The SIA will have a wide range of enforcement powers and will be able to impose civil sanctions, including penalty notices up to a maximum of £10,000 for standard duty premises and £18m or 5% of worldwide revenue for enhanced duty premises or qualifying events. There are also criminal offences for non-compliance.

The Home Office has confirmed that once on the statute book later this year, businesses will be given a lead- in time of at least 2 years to understand and implement their new obligations and allow for the new regulator to be established. So far, a series of useful factsheets have been published which can be found here. There will also be dedicated guidance so that those affected will have the required information on what to do and how best to do it. 

Even though implementation of the new law will be some time in the future, for businesses with multiple affected premises, it may be advisable to start to have a strategy to review the existing guidance, monitor the publication of new guidance and assess within the organisation who the responsible person will be and the practicalities around their duties for the business.

For more details, please see our Insight: Martyn’s Law / the Protect Duty: new Bill published

EPC Reform

Environmental sustainability and building energy efficiency has a renewed focus under the Labour Government with various commitments to reach the UK net zero targets by 2050. Government figures show that the UK’s buildings and product uses sector is estimated to have been responsible for 20.2% of the UK’s greenhouse gas emissions in 2023.

 A crucial step to assist property owners, investors and occupiers with the ongoing issue of energy inefficient buildings is to modernise the energy performance of buildings (EPB) regime and in late 2024 the Government published a consultation on changes to EPCs (and other energy performance analytics) in England & Wales.

EPC ratings have for some time been used as the basis for targets such as minimum energy efficiency standards (MEES). It has been recognised that with the evolving complexity in buildings and improvements in energy metric technology there is a pressing need to reform the EPB regime. The consultation closes on 26 February 2025, and it is anticipated that updates to the EPC regime will be introduced sometime in late 2026.

The key proposals:

  1. Updating EPC metrics; moving away from the current system of providing a headline EPC metric (i.e. the banded rating) towards using multiple metrics on EPCs to provide a more complete representation of a building’s energy performance. If the metrics are changed, existing EPCs will remain valid, however, future EPCs may yield different results for the same premises.
  2. Validity period: reducing the validity period of EPCs from the current 10 year period to a much shorter period (potentially under 2 years), to improve access to up to date energy performance information and accurately reflect the current state of the premises
  3. Requirement for a valid EPC: requiring a valid EPC throughout the lease term rather than just on a new lease or sale; this would mean that the expiry of an existing EPC during a tenancy will be a new trigger point for a new EPC.
    1. As a property only falls within the MEES regime if it is required to have a valid EPC, this would bring more properties within the scope of MEES (minimum EPC E rating).
    2. If a valid EPC is required at all times during the tenancy, the current unclear issue of whether an EPC is required on a lease extension or renewal to an existing tenant becomes irrelevant as there will always need to be a valid EPC.
  4.  Listed buildings: requirement that all heritage buildings are required to have an EPC. It is proposed that EPC recommendations, and possibly EPC methodologies, will be tailored for such buildings.
  5. Marketing: tightening the rule around requiring an EPC on day one of marketing a building for sale or rent, removing the current 28 day grace period. Therefore an EPC must always be obtained before marketing commences.
  6. Houses in multiple occupation (HMOs): requiring an EPC for an entire HMO when a single room within it is rented out.
  7. Holiday lets: holiday lets are not required to have an EPC where the property is let for less than 4 months in any year. The requirement is that an EPC would be required where there is any letting of the property.
  8. Display energy certificates (DECs): reducing DEC validity periods from 10 to 7 years for smaller public authority buildings and from 7 to 5 years for larger buildings.
  9. EPC assessors: proposal that the quality of EPC assessors should be improved, largely by overhauling training and introducing specific requirements for CPD for assessors.
  10. EPC enforcement: the consultation acknowledges that little enforcement action is taken in practice. The Government proposes working with the Local Weights and Measures Authorities to improve enforcement and encouraging estate and letting agents to promote the need for EPCs. The fines for breaches may also be increased.

This consultation on EPC reforms goes some way to provide clarity for the property industry around future Government policy, however certainty on the future of MEES needs to be part of these reforms and is not covered in this consultation. So, what is on the MEES horizon in 2025 for commercial property? In the autumn the Government announced that it will be consulting early in 2025 on domestic MEES; a proposed uplift to a minimum of an EPC C rating by 2030, a move that would roll back the previous Government’s abandonment of its domestic MEES policy, as well as an extension of these requirements to the social housing sector. 

There has also been confirmation that the Government is planning to publish early in 2025 the response to the previous Government’s commercial property MEES 2021 consultation. This is much needed and will be the next step in clarifying the future trajectory for MEES for commercial property. It will be interesting to see if the original proposal that all let properties must meet an EPC B rating by 2030 remains.

The one certainty is that the MEES requirements around EPCs are only moving upward, however the exact timeline is unknown. Both landlords and occupiers should assume that there will be developments this year. Whilst this will be welcome to increase certainty around energy efficiency targets, in reality 2030 may not be far enough away to assess if properties are substandard and carry out necessary works, especially where the premises are occupied so there may be practical issues. Tenants don’t forget…….MEES is still relevant to you as it will affect your ability to underlet your premises; in this scenario you become the landlord and the letting will need to be MEES compliant. The tightening of MEES will continue to focus demand towards EPC A and B rated premises, driven not only to meet the expected regulations by 2030 but also by occupiers’ preference for highly sustainable premises to meet employees expectations and their own corporate sustainability targets and reputational standing.

High Street Rental Auctions (HSRA)

Growth and reinvigorating local communities are at the top of the new Government’s agenda, and with 1 in 7 high street shops currently closed, the Government is “committed to revitalising town centres and bringing thriving high streets back for good”. The Government sees HSRA playing a critical role in spurring regeneration, revival, and renewal on a local level – part of a package of measures being deployed to put high streets and town centres back on their feet.

With effect from early December 2024 new regulations allow local authorities to auction leases for high street properties which have been vacant for longer than 12 months in a 24 month period. These powers were originally introduced by the previous Government under the Levelling-up and Regeneration Act 2023. 

Non statutory guidance has also been published which provides a clear outline of the process steps and provides a suite of documents for use by all relevant parties including local authorities, landlords, their lenders and agents.

What are HSRAs and how do they work?

Local authorities in England now have the power to auction leases of vacant commercial premises in high streets or town centres, without obtaining the landlord’s consent. The regulations require the local authority to engage with landlords in order to try and achieve a letting without proceeding to auction, but if attempts fail, the local authority can proceed to begin the auction process for a grant of a lease between 1 to 5 years.

The rules apply to properties in areas designated by the local authority as being a high street or town centre i.e. suitable for “high-street use” as important to the local economy and can include shops, restaurants, pubs, offices and properties intended for public entertainment or recreation. The auction process:

  • Starts with the service of an initial letting notice on the landlord of the premises and if there is a superior landlord or mortgagee, then the local authority must also serve notices on them. During this initial 10 week period the landlord is subject to restrictions on letting the premises.
  • After 8 weeks provided the premises remain unlet, the local authority can serve a final letting notice on the landlord. During this period, the landlord is subject to restrictions on both letting the premises and undertaking any works.
  • Landlords have a right of appeal by serving a counter-notice within 14 days from the date of the final letting notice specifying one of the permissible grounds for appeal (set out in the Act) on which they will be relying. One of the specified grounds is that the landlord intends to carry out substantial works of construction, demolition or reconstruction and could not reasonably do so without retaining possession of the premises.
  • Once the appeal window has passed, the auction process lasts 12 weeks following the service of the final notice.
  • The local authority prepares the auction pack, and the regulations set out the compliance timetable and respective obligations to be met. Landlords will have to provide information relating to the premises, including replies to enquiries, proof of title and various other documents, for example, an EPC if available. Failure to comply is a criminal offence.
  • There is a 6 week marketing period during which bids can be submitted and the local authority must share any bids with the landlord.
  • The landlord then has 2 working days to serve notice on the local authority of its choice of successful bid. If the landlord fails to serve notice of the successful bid by the required deadline, the choice of successful bidder falls to the local authority who may (but is not obliged to) choose to accept a bid. If the local authority does choose to do so, then it must choose the bidder offering the highest annual rental value.
  • The local authority then has power to then enter the agreement for lease, thereby legally binding the landlord to the arrangement.

The local authority can require the successful bidder to pay for the searches, survey and its legal costs incurred preparing the auction pack, including the agreement for lease and lease. The landlord will have to bear its own costs, most notably the cost of any works deemed necessary to bring the premises up to the minimum standard. 

The lease terms

The statutory framework includes a draft standard agreement for lease and there is some ability for the local authority and landlord to agree changes. Here are some of the key prescribed lease terms:

  • Deposit - higher of £1,000 or a sum equivalent to three months' rent.
  • Term - between 1 and 5 years.
  • Security of tenure - no, automatically excluded.
  • Rent - there is no prescribed minimum rent. The rent payable will be that proposed by the successful bidder. The rent is to be paid by monthly instalments in advance on the 1st day of each month.
  • Repair - limited by schedule of condition to be prepared after grant of lease.
  • Permitted use - the use proposed by the successful bidder (which must be within the suitable high street use identified by the local authority in the marketing brochure).
  • Change of use not permitted.
  • Alienation - prohibited save for assignment of whole subject to landlord consent (such consent not to be unreasonably withheld or delayed). An authorised guarantee agreement is to be required but only where reasonably requested by the landlord.

The auction process will result in costs and potentially tight deadlines for landlords; the local authority must at the start of the auction process commission a survey of the premises. If the premises do not meet the "minimum standard" of repair and condition, then the landlord must carry out works at its own cost before the lease is granted, even where the lease is granted for only a year. Also, there is no exemption from MEES, so energy efficiency improvement works may also be required pre letting.

Will this new power actually help to improve the decline in high streets and boost local economies? It is too early to tell, the high street has for some years faced tough competition from changing shopping habits combined with the impact of business rates. No doubt we will see this year if local authorities have the funding and resources to implement the new auction power. The Government's press release says it is committing over £1 million to support the auction process which does not seem a huge amount, so it is uncertain whether local authorities will have the time and resources to take this further. A group of local authorities have been selected as "early adopters" so we may soon find out how proactive local authorities will be when faced with the upfront cost and procedural burden of HSRAs.

There is inevitably some scepticism from landlords and industry bodies about how successful the new process will be and how many willing tenants will bid. Premises are not kept vacant by landlords without reason; it may be due to a lack of demand for those locations, and it seems unlikely that forcing an auction will change the situation. Landlords may also find themselves facing significant repair costs and locked into unfavourable lease terms, with no right to reject bids from unsuitable tenants, which may not align with their business strategy.

Modernising Business Tenancies

Should business tenants have security of tenure and, if so, how should it operate? These are the issues asked by the Law Commission in the long awaited and much promised consultation published in November, looking at reforming the right to renew business tenancies under the Landlord and Tenant Act 1954 (1954 Act) and whether it meets the needs of tenants and landlords in today’s leasehold market. 

The 1954 Act was last reviewed 20 years ago, and the lettings market has changed significantly with the huge increase in online retail and services and the Covid-19 post pandemic changes. Government priorities have also evolved during this time; for example, there is now an increased focus on the environmental sustainability of commercial properties. There is much commentary that the 1954 Act is no longer fit for purpose and “aspects of the law are burdensome, unclear and out-of-date”.

This initial consultation forms part of a two part review and closes on 19 February 2025. A second technical consultation is expected later this year based on the responses received and is expected to focus on the renewal process. If this first consultation concludes security of tenure should be retained in some form and we keep the contracting out system, then the follow-up will consider the operation of the scheme and perhaps simplifying the contracting out procedure.

The consultation sets out 4 models of security of tenure and invites views on which should operate in England and Wales:

  • the current “contracting-out” model of security of tenure; business tenancies by default have security of tenure (the tenant has a statutory right to renew its lease on expiry) but the parties can agree to contact out of this right and must follow a prescribed procedure to opt out.
  • mandatory security of tenure; all business tenancies will have security of tenure with no option to contract out.
  • abolition of security of tenure; there would be no statutory right to lease renewal leaving the parties to freely negotiate any renewal terms.
  • a “contracting-in” model; business tenancies are granted without security of tenure and the parties would need to agree to opt in to security of tenure.

The consultation also considers the pros and cons of each model which reflects many of the current views in the market around the issue, for example, the current model of “contracting out” offers flexibility and continuity provides market certainty. However, there is the time and cost of opting out.

The consultation also seeks views on whether the types of business tenancy which can benefit from security of tenure are the right ones. Under the current model, almost all business tenancies are within the scope of the 1954 Act. Only certain types of tenancies are excluded such as agricultural tenancies and tenancies granted for 6 months or less. Should there be reform to the scope of the 1954 Act? Should more tenancies be excluded based on the property use, the rent payable, the tenancy length, or their location? For example in the Netherlands protection is given to a limited class of business tenants based on use of the premises e.g. protected uses are hotels, retail, cafes and campsites. In Scotland, there is protection for shops only. Widening the range of excluded tenancies could potentially increase the complexity around qualifying criteria, resulting in a greater risk of dispute.

In addition to the consultation, there is also a short survey to provide a better understanding of the impact of the 1954 Act on the current commercial leasehold market. This will provide more information on the prevalence of contracting-out within the current commercial leasing market.

For more detail please see our Insight: Modernising Business Tenancies – the end of security of tenure? 

What happens next? 

The Law Commission will, following the full review, publish a report with its final recommendations for potential reform. The Law Commission states that it is not championing any given approach but does highlight that it would be looking for “significant evidence that a different model should be adopted (and the existing model departed from), or for the scope of the Act to be reformed, before making any recommendation to do so.”

Ultimately it will be for the Government to decide whether or not to implement the recommendations. It is clear that the outcome of the review could significantly affect the commercial leasehold market, but it will be some years before any changes become law. Notwithstanding, the launch of the consultation has been welcomed and there is consensus that a modern commercial leasing framework is needed to reflect the current letting market addressing a number issues including decarbonising the built environment to meet the UK’s net zero targets, re development and repurposing buildings, increased flexibility reflecting shorter lease terms and streamlining the leasing process to drive investment.

Service Charges in Commercial Property 

Last October the Royal Institution of Chartered Surveyors (RICS) completed its consultation on the draft second edition of its Professional standard, Service charges in Commercial Property (first edition), commonly known as the Service Charge Code. The new edition is due to launch summer 2025 and is designed to address key challenges in the management of service charges, including the issue of budgets and year-end certificates, and aims to reduce the causes of disputes between landlords and tenants by ensuring that service charges in commercial property are managed with greater transparency and consistency across the industry.

The draft second edition of the Professional Standard states it will be effective for "all service charge periods commencing 6 months from publication" and will provide guidance for property professionals, landlords, tenants, and property managers.

RICS professional standards set requirements for RICS members and how they provide service but they cannot override lease terms.

Business Rates Reform

Government figures report business rates are forecast to raise £26 billion in 2024-25 and make up a quarter of Local Authority core spending power. They support critical local services and are an important source of revenue for local government. It is acknowledged that property intensive sectors bear a proportionately greater share of the overall business rates burden, and this impacts High Street businesses. For some time business groups, including the British Retail Consortium, have raised concerns that the business rates system disincentivises investment and is slow to respond to changing economic conditions.

In its Autumn 2024 Budget, the new Government announced the initial steps it will take to reform the business rates system, which include:

  • An intention to introduce permanently lower multipliers for retail, hospitality and leisure properties with a rateable value (“RV”) under £500,000 from April 2026-27 to level the playing field for the High Street.
  • An intention to fund the introduction of lower multipliers sustainably via a higher multiplier on properties with a RV of £500,000 and above, which includes the majority of large distribution warehouses including those utilised by online businesses.
  • Providing support for retail, hospitality and leisure properties in the interim period leading up to the new permanent multiplier by providing 40% relief to businesses on their rates bill in 2025-26, up to a cash cap of £110,000 per business. The present rate of relief is 75% albeit this was previously due to be reduced to zero on 31 March 2025 so the announcement represents a degree of cushioning.
  • Protecting the smallest properties by freezing the small business multiplier in 2025-26 and protecting over a million properties from inflationary bill increases.
  • Preventing private schools from being able to benefit from charitable rates relief.

The above steps are intended to be the starting point in a complete overhaul of the business rates and last October the Government published a paper on Transforming business rates with the objective of seeking a “wider” conversation with businesses and stakeholders. The paper sets out the Government’s priority areas of reform to protect the high street, incentivise investment and ensure the business rates system is fair and fit for the 21st century. The Government will be conducting engagement until March 2025.

Whilst the introduction of permanently lower business rates from 2026 for high street businesses, gives the retail and hospitality sector much needed support; this will be funded by increased tax on the largest business properties. This includes large retailers, hospitality businesses, warehouses and the bigger supermarkets. Combined with other Budget tax changes this may be counterproductive and have a negative effect around employment and investment. 

Redevelop v Retrofit 

The “new or renew” debate remains a challenge for the property industry when dealing with existing building stock. The debate was front and centre at the end of 2024 when the Housing secretary Angela Rayner granted Marks and Spencer (M&S) permission to demolish and redevelop its flagship Marble Arch store. M&S secured the approval following a long and controversial battle of more than 3 years. The retailer had been awaiting a decision since March 2024 when it won a legal challenge against the previous Conservative Government, which had stopped it from demolishing the store to make way for a new store with 4 new floors, restaurants, offices, and a gym. Rayner concluded that refurbishment of the scheme was “so deeply problematic” that it would be unviable and noted the wider impact of M&S leaving the location if planning permission was refused.

The M&S decision highlights the significance of the retrofit vs redevelopment debate with the increasing emphasis on sustainability and reducing embodied and operational carbon emissions. It will be interesting to see how the new Government elects to balance easing restrictions on development in urban areas while addressing issues of embodied carbon given the net zero transition and impacts on heritage.

In part, this was a political decision, but it is a strong indication about the future direction around how the Government will approach development projects. Claire Fallows, Partner and Head of Planning commented in the press that "A green light from Rayner is a strong political move: it seeks to frame Labour as a pro-business party willing to make controversial decisions to support retailers and rejuvenate the high street, amidst tough economic conditions for businesses”. 

Claire went on to comment that this decision “does not set a precedent for every scheme involving demolition and rebuild, as each must be considered on its facts. But this is a landmark decision indicative of a new era of decision making from the Government on planning”.

There have been a number of further policies and proposals in 2024, which looking forward, will impact future planning decisions for retrofit-versus-new developments:

  • Westminster City Council is in the process of reviewing its local plan to include the introduction of a “retrofit-first” policy. The intention is to prioritise refurbishment over demolition thereby limiting the impact of development on climate change. Development proposals which involve substantial or total demolition will be required to justify the approach by an appraisal of construction options including refurbishment, retrofit, deep retrofit and newbuild- presenting the carbon costs and public benefits for each. The policy states demolition will be resisted unless certain conditions are met. Other authorities have already proposed or adopted such policies.
  • Historic England produced an advice note on “Adapting Historic Buildings for Energy and Carbon Efficiency”.
  • The London Property Alliance’s “Retrofit First, Not Retrofit Only: Future-proofing national policy to support sustainable development’” calls on the Government to provide national policy guidance on how best to establish when demolition and redevelopment provides greater benefits than retrofit. In the absence of such policy, there is a lack of consensus as to best practice and inconsistent decision making.
  • The launch of the pilot version of the UK Net Zero Carbon Buildings Standard for all major building types. The standard enables industry to prove their built assets are net zero carbon and in line with UK climate targets. Version 1 of the standard is expected to be live later this year - for more information on this please see our Insight: The New UK Net Zero Carbon Buildings Standard 2024 – an ESG milestone?

The M&S decision can be seen as indicative of the current political direction of travel in favour of redevelopment over retrofit in the absence of viable alternatives, especially in the context of flagship high street locations which are drivers for economic growth and employment. That said, we will need to watch for the implications for investment and the approach to embodied carbon considerations in planning decisions during 2025. It will also be interesting to see if property owners consider retrofitting (which may be significantly more expensive than redevelopment ) in order to meet their own sustainability targets.

The press reports that later this month Grosvenor’s plans to retrofit and extend an office asset in Belgravia (Ebury Gate) are up for approval by Westminster Council. It is reported that this will be the largest retrofit project Grosvenor has undertaken to date and it will be interesting to see the planner’s approach. 

Real Estate & Construction - what lies ahead in 2025?

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