House of Fraser settles case with landlords

House of Fraser can now focus its efforts on rescuing its struggling business after the department store reached an out-of-court settlement with its landlords. House of Fraser would have had to defend the lawsuit in the Edinburgh Court of Session next week if it had not reached a deal with the group of landlords.

The legal challenge brought by the landlords relates to a company voluntary arrangement (CVA) which was approved by House of Fraser’s creditors in an effort to keep the department store in business, albeit, with 6,000 job losses and the closure of 31 of it 59 stores, including its flagship store on Oxford Street. 

The landlords brought the legal action arguing that the terms of the CVA prejudiced their interests and treated them unfairly. The deal between House of Fraser and the group of landlords was reached over the weekend, the terms of which are confidential. This settlement will no doubt allow House of Fraser to focus on securing investments to keep the business afloat.

General Data Protection Regulation

BACKGROUND

The General Data Protection Regulation (GDPR) is an EU regulation that comes into force in May 2018.

EU regulations are legally binding on all member states and automatically come into force on the specified date. There is a difference between regulations and directives — directives set standards and requirements which member states are free to decide how to transpose into national laws.

Article 5 of the GDPR sets out the key requirements for organisations processing personal and sensitive data of EU residents. The GDPR is a minimum threshold and member states may introduce more specific provisions.

The GDPR replaces the Data Protection Directive 1995. It has been adopted by the UK and replaces the Data Protection Act 1998.

Unlike the previous Data Protection Directive 1995, the GDPR seeks to harmonise data protection rules across the EU to further protect data and make it simpler for organisations to do business across the EU.

GDPR also applies to organisations outside the EU if those organisations collect data of an EU resident.

APPLICATION OF GDPR

The Regulation applies to controllers and processors. Controllers determine the purposes and means of processing personal data, while processors are responsible for actually processing personal data. The contracts between controllers and processors must also comply with the regulation.

The GDPR places certain legal obligations on processors of personal data. A processor will be legally liable if they are responsible for a breach of the regulation.

Data must be collected for specified, explicit and legitimate purposes. The lawful basis for processing data must be identified and highlighted to those whose personal data are being collected. Consent of the data subject is important to ensure that data collection is lawful.

Data must be processed in a manner to ensure the security of the personal data. Individuals whose data have been collected have the right to: be informed; access the data; amend; erase; object to the collection and storage of such data.

Data should be accurate and kept up-to-date and where possible inaccurate data should be erased. Data should be kept for no longer than necessary, but may be stored longer for archiving and research purposes.

Any firm that breaches the GDPR may be fined 4% of its annual global turnover or 20 million Euros, whichever is greater.

EXCEPTIONS TO GDPR

  • Data covered by the Law Enforcement Directive.
  • Data processed for national security purposes.
  • Data processed by individuals for personal use.

 

We offer training and advice on this subject. If you wish to learn more about whistleblowing then you can reach us at ask@penerley.com or call us on 0203 488 3078

Find Out if You Hold a Tenancy or Licence Agreement

The primary difference between a tenancy and a licence agreement is that a tenancy generally provides more rights and protection to the occupier. Thus, if you are an individual it is important to ascertain if you hold a tenancy or a licence agreement. The three hallmarks of a tenancy are: (a) exclusive possession; (b) for a term; (c) at rent.

Exclusive possession. The term exclusive possession is not expressly defined, but it is generally accepted that if an occupier has control of the entire property, room, or significant area within the property, and in the absence of any meaningful restriction then they have exclusive possession. Ascertaining if an occupier has “exclusive possession” very much depends on the facts. Therefore, the clauses in the agreement are merely a starting point — the factual evidence is very important in deciding if an occupier has exclusive possession. In order to determine if you have created a tenancy or licence agreement, the courts will delve into the actual arrangement that existed between both parties. Courts are very reluctant to recognise a document as a licence especially when the tenant claims to hold a tenancy agreement. Generally, the occupier has exclusive possession if the landlord does not also live in the property.

In order to avoid granting an occupier exclusive possession, some landlords may insert a clause in the agreement that permits the landlord to move the occupier from one room to another. Again, the facts are important because irrespective of the presence of such clause in the agreement, if the landlord never actually moves the occupier between rooms then the tenant holds exclusive possession of the room they occupy. Further, depending on the provisions of such a clause in the agreement, it may amount to an unfair/unreasonable clause that is unenforceable against the occupier.

For a term. The second hallmark of a tenancy is that the agreement exists for a term certain. This means that the term of the agreement is either clearly stated in the agreement or ascertainable from the agreement. Most tenancies are for either six or twelve months. Therefore, if your agreement is for a term of six or twelve months the agreement satisfies this element of a tenancy. If the agreement does not expressly contain a term, it is still possible to find that the agreement is a periodic or month-to-month tenancy. Again, this depends on the factual evidence.

At rent. The final element of a tenancy is that the occupier pays rent for the occupation of the property. This is not to say that every occupier that pays rent to a landlord is automatically a tenant; indeed a licensee may validly pay rent under a licence agreement. The level of rent paid by the occupier is also relevant evidence in determining if a tenancy exists. For example, if an occupier pays rent at market rate then that is persuasive evidence that the occupier holds a tenancy.

In deciding whether an occupier holds a tenancy or a licence, you must closely consider the facts together with the signed agreement and take a holistic view. If all three elements of a tenancy are present then the occupier has a tenancy.

You most likely have a tenancy unless at least one of the following factors exists in your case:

  1. the landlord resides in the property; or
  1. the rent payable exceeds £100,000 a year; or
  1. the rent payable is no more than £1,000 a year; or
  1. a business tenancy; or
  1. it is a public house; or
  1. it is an agricultural land; or
  1. letting to students by an institution or specified body; or
  1. holiday lettings; or
  1. crown estate.

 

We offer training and advice on Landlord and Tenant matters. For more information, you can reach us at ask@penerley.com or call us on 0203 488 3078

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