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Perfecting security in real estate finance transactions—checklist

Perfecting security in real estate finance transactions—checklist This Checklist sets out the steps which property lawyers need to take to perfect security in a real estate finance transaction. Real estate finance lenders will typically want to take a full security package over all of the assets relating to the real estate. A real estate lawyer in a multi-disciplinary team will likely be responsible for arranging or inputting into the following securities and documentation: • security over the land, rental income, insurance proceeds, development and construction and contractual rights • reviewing the management agreement and negotiating a duty of care agreement (although in a multi-disciplinary team, this is sometimes handled by the banking and finance lawyer) • dealing with completion undertakings and post completion registration of the legal charge at Companies House and HM Land Registry as well as giving third party notices regarding rent payment, notice of charge where necessary of assignment of contractual rights or warranties See Practice Notes: Security in real estate finance transactions, Taking security over land...

Completing the JCT 2016 Intermediate Building Contract Particulars—checklist

Completing the JCT 2016 Intermediate Building Contract Particulars—checklist The Agreement, Recitals, Articles and Contract Particulars at the start of a JCT contract set out the project specific details for the particular works to be carried out. It is very important that these are fully completed and that the details are correct to avoid ambiguity and disputes regarding what is required. This Checklist provides practical guidance as to how to complete the details including links to relevant Practice Notes which provide detailed information on the areas covered. It is aimed at those who are relatively new to dealing with JCT contracts. An employer will often arrange for the architect/contract administrator or other consultant to complete the particulars at the start of the contract and will then ask its lawyer to check the contract before the parties execute it. Alternatively, a lawyer may be asked to fill in all of the details but they will need input from the client or its consultants as to the details to be inserted. This Checklist...

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DPO appointment decision tree

DPO appointment decision tree Under Assimilated Regulation (EU) 2016/679, the General Data Protection Regulation (UK GDPR), certain organisations are required to appoint an individual to act as their data protection officer (DPO). The appointment can be internal, eg an employee of the organisation, or external, eg a consultant under a service contract. This DPO appointment decision tree will help you determine whether your organisation needs to appoint a DPO under the requirements of the UK GDPR. If your organisation has operations in jurisdictions outside the UK, you will also need to check whether local law or regulations require you to appoint a DPO in any of those jurisdictions. For more information on the role of the DPO, see Practice Note: Data protection officer or, for law firms, Practice Note: Data protection officer—law firms. For a checklist of issues to consider when appointing a DPO, see: Data protection officer (DPO) appointment—checklist. Whatever decision your organisation makes about appointing a DPO, guidelines on DPOs published by the Article 29 Data Protection Working...

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Payment in consultant appointments

Consultant appointments and the HGCRA 1996‘Construction contracts’ as defined in the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) are subject to the provisions of Part II of the HGCRA 1996 (subject to some exceptions). See Practice Note: Introduction to the HGCRA 1996. HGCRA 1996, s 104(1) provides that construction contracts include agreements for:•the carrying out of construction operations•arranging for the carrying out of construction operations by others, whether under sub-contract or otherwise•providing labour, or the labour of others, for the carrying out of construction operationsHGCRA 1996, s 104(2) clarifies that this includes agreements to carry out architectural, design, or surveying work, to provide advice on building, engineering, interior or exterior decoration or on the laying-out of landscape in relation to construction operations. Consultant appointments can therefore be caught by the definition of a ‘construction contract’ where the appointment relates to ‘construction operations’ as defined in the HGCRA 1996.Under section 105, ‘construction operations’ is widely defined and includes works that you would expect in construction and engineering projects, including...

Professional indemnity insurance in construction projects

This Practice Note looks at professional indemnity (PI) insurance in the context of construction projects—the requirement to hold insurance, the level and basis of cover and typical wording contained in clauses requiring PI insurance to be maintained. For a wider review of professional indemnity insurance, see Practice Note: Professional indemnity insurance—essentials.This Practice Note refers to a consultant’s obligations to maintain PI insurance, however main contractors and sub-contractors taking on design responsibility will also be required to maintain PI insurance and the principles referred to below also apply to those contractors.A contractor with no design responsibility may not consider it necessary to hold PI insurance, however, in the event that a contractor failed to follow the consultant’s designs, an employer may allege that the contractor made an ‘on-the-spot design decision’, which could trigger a PI policy. For more information, see Practice Note: Design liability in construction contracts—Responsibility for design under different procurement routes (in particular, the section titled ‘Traditional’).Requirement to hold professional indemnity insuranceA consultant’s appointment for a construction project will...

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Statutory requirements clauses (construction contracts)

Statutory requirements (currency) 1 References in this Agreement to any statute or statutory instrument include any statute or statu

Indemnity clause—infringement of third party IP rights (consultant appointment)

Indemnity

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Could a clause requiring consultants to pay back any shortfall in their billing target be treated as a penalty clause?

Could a clause requiring consultants to pay back any shortfall in their billing target be treated as a penalty clause? This Q&A examines liquidated damages and penalty clauses in the context of the following example scenario: The NHS pays a dental practice a set amount per year for the treatments it provides. If the practice doesn't meet its target, it must pay the shortfall to the NHS. Under the relevant dental consultancy agreement, dentists have an annual treatment target and get paid for each treatment performed. If the contract is terminated early, there is a clause which provides that the practice may require the consultant to pay back any shortfall in their pro-rated treatment target, to the extent that the shortfall has not been performed by any other consultant as at the date of termination. The question is, could a clause requiring consultants to pay back any shortfall in their billing target be treated as a penalty clause? Contractual liquidated damages clauses (a clause where the...

How could the funder of a ‘first purchaser’ of a construction development obtain rights against the construction/design team?

How could the funder of a ‘first purchaser’ of a construction development obtain rights against the construction/design team? It is standard market practice for warranties to be provided by the construction/design team to the following beneficiaries: • funder of the development • any first purchaser of the whole or a substantial part • any first tenant of the whole or a substantial part • employer (if the warrantor is a consultant or sub-contractor) • freeholder Where a purchaser is the 'first' purchaser from the employer/developer, a typical construction contract will provide, therefore, that the first purchaser will be entitled to receive a collateral warranty equivalent (ie on the same terms) to that given to the employer/developer, from the same contractor/consultant/sub-contractor. Any other beneficiaries not listed above, ie the funder of a first purchaser, would be considered unusual and the warrantor would be likely to resist providing any such additional warranty (although the funder could always request one, the warrantor may agree). See: Collateral warranties—checklist. This differs to the...

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Reassuring result for VETSURE—trade mark infringement established in appeal (TVIS v Howserv)

IP analysis: TVIS has successfully appealed the finding that its claim for infringement under section 10(2) of the Trade Marks Act 1994 (TMA 1994) failed. Howserv’s use of PETSURE for pet insurance services resulted in a likelihood of confusion and therefore infringed TVIS’s trade mark for VETSURE, registered for identical services. Lord Justice Arnold gave the leading judgment in the Court of Appeal and concluded that although VETSURE alluded to insurance against veterinary costs, a major component of most ‘pet insurance’ services, it did not describe that service. The trial judge’s finding to the contrary impacted his assessment of the inherent distinctiveness of the VETSURE trade mark. Furthermore, the trial judge was inconsistent in finding that the mark lacked acquired distinctiveness but possessed a ‘reputation’. These and other errors made it necessary for the appeal court to assess the likelihood of confusion afresh. Written by Bonita Trimmer, consultant and Alice Elliott-Foster, associate, at Browne Jacobson LLP.

Applying US High Courts domestic corruption rulings to US FCPA

Law360: The US Foreign Corrupt Practices Act (FCPA) prohibits US companies and individuals from bribing government officials outside the US, but its scope has rarely been tested in US appellate courts, and never in the US Supreme Court.