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What are the implications of the K/S Victoria decision on various scenarios in which the tenant wishes to assign to its guarantor?

Anonymous (Private practice)

Q:
Our understanding is that the strict legal position following the obiter comments in KS Victoria Street is that an assignment of a lease from a tenant to its guarantor will be void. Is it arguable on this analysis that the following would also be void:
(a) A guarantor being required by the landlord to take a new lease pursuant to provisions in the original lease requiring the guarantor to do so where the original tenant goes into liquidation and the lease was disclaimed.
(b) The existing lease being surrendered and re-granted to the original tenant (without the guarantor being required to guarantee this new lease), with the new lease then being assigned by the original tenant to the original guarantor.
(c) The guarantor being released from the original lease shortly before its assignment to the guarantor.
Would your views on the above scenarios differ if a sort of tripartite over-arching agreement was put in place to achieve these pre-ordained steps?
We are acting for a client group which is restructuring. The lease is currently in the name of a subsidiary with the parent company acting as guarantor. The intention is to dissolve the subsidiary, and for the parent company to become the new leaseholder. We are aware that one option would be to surrender the existing lease and for a new lease to be granted to the guarantor. However, if this is done SDLT overlap relief would not be available as none of the circumstances in paragraph 9 of schedule 17A of the Finance Act 2003 would apply ie. the new lease would not be between the same parties as the old lease, and the guarantor would not be taking the same lease "in pursuance of the guarantee".

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Also Found In
Resource ID a-008-7315
© 2024 Thomson Reuters. All rights reserved.
Date published
02 May 2014
Resource Type Ask
Jurisdictions
  • England
  • Wales
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