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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Global | Publication | October 2018
Since the abolition of distress in 2014, landlords who want to recover rent arrears by taking control of the tenant’s goods and selling them must do so through a statutory procedure known as Commercial Rent Arrears Recovery (CRAR). CRAR is more limited than distress and is only available to recover arrears of basic rent from commercial premises.
Leases of commercial premises also invariably contain an express right for the landlord to terminate the lease by forfeiture if the tenant is in breach of any of its terms, such as by not paying rent.
It is all too easy accidentally to waive the right of forfeit. If the landlord (or indeed its agents) does anything that effectively acknowledges an ongoing landlord and tenant relationship once it is aware of a breach of the lease, it will have waived its right of forfeit for that particular breach.
Thirunavukkrasu v Brar [2018] EWCH 2461 (Ch) considered for the first time whether the exercise of CRAR amounted to a waiver of the right to forfeit.
The landlord sought to recover accrued arrears of rent by means of the CRAR procedure and the landlord’s agents exercised CRAR over the tenant’s goods. The landlord also subsequently purported to forfeit the lease by re-entry. The tenants argued that the purported forfeiture of their lease was unlawful and claimed damages for trespass.
The judge held that the exercise of CRAR by the landlord contained an “unequivocal representation that the lease was continuing”, so that the right to forfeit the lease had been waived and the forfeiture was indeed unlawful.
Accidental waiver is a particular problem in the context of “once and for all” (as opposed to continuing) breaches, because if the right to forfeit in respect of such breaches is waived, it will be waived permanently. Non-payment of rent is a “once and for all” breach. However, landlords may be heartened to know that the right to forfeit may arise again if the tenant fails to pay another instalment of rent in the future.
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Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
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European asset managers are excited about the revised European long-term investment funds (ELTIF) regime and hope that the greater flexibility for managing and distributing ELTIFs will open up new markets for their long-term investment strategies.
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The recent publication of the Investment Association’s Second Interim Report on Fund Tokenisation and regular news articles in the financial press evidence continued enthusiasm for the adoption of digital technologies such as tokenisation amongst players in the financial services markets. Indeed, the global market for tokenised real-world assets is already currently estimated to be around $600 billion and has been predicted to reach $16 trillion by 2030.
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