BUYING & SELLING

SOLUTIONS

COMMERCIAL PROPERTY

When selling or buying commercial property, breadth of coverage is as important as price and speed. We focus on understanding your transaction to ensure we see the risks as you see them and provide the right cover.

We are a development partner with the Land Registry and have developed a unique IT platform capable of collating volumes of property data and interrogating each property for common risks related to title, ownership, use, lending criteria, contaminated land, flood risk, and ground stability.

 
BUYING & SELLING SOLUTIONS // COMMERCIAL PROPERTY // FAQS
CLS’s panel of carriers enables us to insure sums of up to GBP 270 million of AA- and A rated paper. Additional capacity is drawn upon for larger cases.
See ERGO, AEGIS and AMTRUST for their current financial standing.
Additionally, we specialise in providing supplementary coverage to protect against consequential loss flowing from title defects.
Common place risks, such as restrictive covenants, enforcement of third party rights or the absence of easements, and more specialist “interpretation” risks flowing from leases or new legislation.
We insure through a combination of informed dialogue with our clients and our own efficient due diligence systems. We routinely design coverage to accommodate actions desired or required to be taken by our insureds after inception of the insurance e.g. applications to Land Registry.
In the context of portfolios of property, we have developed a unique IT platform to support our Due Diligence Assistance product, which can be used to identify and analyse common sources of risk in relation to ownership and use. See Buying and Selling Property > Due Diligence Assistance FAQ’s or Property Development Solutions > Risk Appraisals FAQ’s
We strive to:
  • simplify routine matters;
  • review a risk and confirm cover on clear policy forms subject to confirmation of a limited number of “Statements of Fact”;
  • encourage clients to discuss matters and set out their risk in context;
  • undertake (and share) our own due diligence exercise;
  • adapt our policy form and finalise any accompanying “Statements of Fact” required to be confirmed by you.
Heads of loss include costs & damages awarded against an insured, settlement costs, loss in market value or loss to funders, consequential losses (loss of trading receipts or rents) & relocation costs (insured or insured’s tenants).
Routine quotations - 24 hours.
For more complex enquiries we will endeavour to provide an indicative view within 48 hours (depending on complexity). CLS is seasoned in providing solutions which satisfy the demands of your transaction timetable.
Using CLS’s panel of insurers, we are able to insure in UK and throughout Europe. We focus on England and Wales, France, Germany and Benelux territories.
BUYING & SELLING SOLUTIONS // COMMERCIAL PROPERTY // SOLUTIONS
CASE CONTEXT
The Landlord and Tenant (Covenants) Act 1995 and judgements such as those in Good Harvest & K/S Victoria Street have combined to pose a technical risk to the enforcement of guarantees in the context of intra-group assignments. We worked with leading firms and Counsel to create an insurance solution that brought the potential technical risk of a loss of the parent guarantee on to the insurers’ balance sheet. This preserved value, reassured buyers and funders and, ultimately, helped enable numerous significant London commercial property investment transactions to close.
SOLUTION
After considering the technical risk between the parties, we created an insurance solution that addressed the risk and enabled the parties to renegotiate the sale price in a manner that maintained viability for both parties.
CASE CONTEXT
A pension fund was due to invest in a head leasehold interest in a new mixed use development. Legal due diligence identified a technical defect contained in a pre-existing occupational lease which could restrict the head landlord's ability to recover a portion of the costs of maintenance and repair of the building from the under-lessee.
SOLUTION
Utilising detailed in-house due diligence to establish the intention of the original contracting parties and potential quantum of exposure (by reference to expert surveyors) we created a solution that balanced the fund's commercial risk as an investor with the strict legal risk positions of the landlord and tenant. The policy would respond if the occupational tenant resisted all reasonable steps by the head landlord so that legal action was required to enforce the terms of the lease and indemnify legal costs as well as a capitalised sum (representing unrecoverable contributions from the occupational tenant) in the event of an adverse order.
CASE CONTEXT
An investor was seeking to purchase a retail park consisting of 14 units. Leases to two of the units contained exclusivity clauses specific to those tenants (‘the Exclusivity Tenants’). The exclusivity clauses prevented the landlord from granting “new leases” to other tenants who would be in competition with the Exclusivity Tenants. Additionally, the landlord was required to insert a restriction within the new leases which respected the exclusivity clauses (‘the Restriction’) – which had not been adhered to in 3 subsequent leases. Although the exclusivity clauses did not apply to other leases on the retail park which pre-dated them, there was concern that as these leases were protected by the provisions of the Landlord and Tenant Act 1954 (‘1954 Leases’), on renewal they would be deemed to be “new leases” and, under the terms of the exclusivity clauses, subject to the requirement to impose the Restriction.
The investor was concerned the Exclusivity Tenants and/or the tenants of the 1954 Leases would seek damages for breach of the exclusivity clauses or imposition of the Restriction (in contravention of the provisions of the Landlord and Tenant Act 1954) respectively.
SOLUTION
Our policy managed the investor’s concerns by covering exposure to claims from the Exclusivity Tenants for breach of their exclusivity clauses. The policy also provided a solution which allowed the investor to engage with tenants of the 1954 Leases as and when required to allow them to negotiate provisions within the proposed new leases in the interests of good estate management (even if in breach of the exclusivity clauses). The cover allowed for the flexibility which the investor required to manage their investment property safe in the knowledge that any issues regarding the enforcement of the exclusivity clauses would be borne by the Insurer.
CASE CONTEXT
As a condition of planning, an obligation was placed on the developer of a large student housing scheme to monitor water flow between the property and a local river for a period of 18 months following practical completion to ensure that remediation activities had been successful. The developer worked closely with an institutional investor to routinely sell completed buildings upon practical completion however their standard sale and purchase agreement required a warranty from the developer in respect of liabilities such as potential contamination. Traditional contaminated land insurers had refused to insure until expiry of the 18 month monitoring period. The developer sought an exit without contingent liabilities and the fund would not accept any exposure to such liabilities.
SOLUTION
By reference to the developer’s remediation strategy and our in-house expertise and data an insurance solution was tailored to replace a warranty from the developer to the fund.
CASE CONTEXT
Land was being sold which comprised a commercial property and amenity land. During the transfer it became apparent that the garden land did not fall within the seller’s title but rather had, in fact, been wrongly registered as common land under the Commons Registration Act 1965.
SOLUTION
An insurance solution was tailored to allow for an approach to the appropriate Authorities in order to deregister the land as Common Land and then make an application to register title to the land.