header-logo header-logo

23 April 2009 / Malcolm Dowden
Issue: 7366 / Categories: Features , Procedure & practice
printer mail-detail

Liability after disclaimer

Malcolm Dowden considers authorised guarantee agreements and Hindcastle

Where does loss lie when a liquidator disclaims a lease? Does it fall on the landlord or on the tenant's guarantor? After the property slump of the early 1990s, the House of Lords overturned previous authority to find that loss lay with the guarantor (Hindcastle v Barbara Attenborough Associates [1996] 1 All ER 737). Faced with a new recession in the property market, the Court of Appeal has confirmed that the same conclusion applies to the liabilities of a former tenant under an authorised guarantee agreement (AGA) (Shaw v Doleman [2009] EWCA Civ 283; [2009] All ER (D) 34 (Apr)).

Disclaimers & phantom leases

Guarantees protect landlords against the risk of a tenant defaulting on rent payments or other lease obligations. Until Hindcastle, guarantees could become worthless, at the moment of greatest need, when the liquidator of an insolvent tenant disclaimed the lease. For nearly a century authority followed Stacey v Hill [1901] 1 QB 660, where disclaimer under the Bankruptcy Act 1883 not only released

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

From first-generation student to trailblazing president of the London Solicitors Litigation Association, John McElroy of Fieldfisher reflects on resilience, identity and the power of bringing your whole self to the law

Clarke Willmott—Elaine Field

Clarke Willmott—Elaine Field

Planning and environment team expands with partner hire in Manchester

Birketts—Barbara Hamilton-Bruce

Birketts—Barbara Hamilton-Bruce

Firm appoints chief operating officer to strengthen leadership team

NEWS
A landmark Supreme Court ruling has underscored the sweeping reach of UK sanctions. In NLJ this week, Brónagh Adams and Harriet Campbell of Penningtons Manches Cooper say the regime is a ‘blunt instrument’ requiring only a factual, not causal, link to restricted goods
Fraud claims are surging, with England and Wales increasingly the forum of choice for global disputes. Writing in NLJ this week, Jon Felce of Cooke, Young & Keidan reports claims have risen sharply, with fraud now a major share of litigation and costing billions worldwide
Litigators digesting Mazur are being urged to tighten oversight and compliance. In his latest 'Insider' column for NLJ this week, Professor Dominic Regan of City Law School provides a cut out and keep guide to the ruling’s core test: whether an unauthorised individual is ‘in truth acting on behalf of the authorised individual’
Conflicting county court rulings have left landlords uncertain over whether they can force entry after tenants refuse access. In this week's NLJ, Edward Blakeney and Ashpen Rajah of Falcon Chambers outline a split: some judges permit it under CPR 70.2A, others insist only Parliament can authorise such powers
A wave of scandals has reignited debate over misconduct in public office, criticised as unclear and inconsistently applied. Writing in NLJ this week, Alice Lepeuple of WilmerHale says the offence’s ‘vagueness, overbreadth & inconsistent deployment’ have undermined confidence
back-to-top-scroll