Thinking of closing a branch surgery?
There can be many reasons for wanting to close a branch surgery, including the premises not being fit for purpose, the lease coming to an end or it not being financially viable to continue to see patients from it. You might think that closing a branch surgery should be fairly straightforward, particularly if the patients can be seen at your main site just down the road and there are potential cost savings to be had for both you and the NHS. So what’s the issue?
Your obligations when closing a branch surgery
As the holder of a GMS or PMS contract, you are not permitted to close a surgery site without first going through a statutory process. Briefly, this requires you to:
- alert the ICB of your intentions and follow the agreed consultation guidelines
- consult with the LMC, the patient participation group and other stakeholders (such as local residents, other local GP practices, registered patients, local community groups, local allied health care professional organisations)
- submit a formal application to close the branch surgery to the ICB
Failure to do these things could put you in breach of your GMS contract.
Tips for a successful closure application
As far as the ICB is concerned a site closure will result in a major change to patient delivery, an alteration to your GMS service provision and potentially a change to the money you receive under your GMS contract once it is varied to reflect the closure.
Be as pro-active as you can in your formal application to the ICB. Time spent on the consultation process and collating all the relevant information to include in your application, will be time well spent. Try to present your application to close a branch surgery with solutions rather than problems. Provide as much information as you can about how your registered patients will be impacted – will they have better access, less wait for appointments, the benefit of extended hours, dispensing services etc.
Other considerations when closing a branch surgery
If closure is approved, don’t forget to consult with your staff and take advice if closure might result in redundancies or a change to their place of work or working hours. Getting it wrong can be a costly mistake.
If you lease your branch surgery, then you will need to bring the lease to an end. Even if you don’t have a written lease in place, you might still have an implied lease or protected rights under the Landlord & Tenant Act 1954 which need to be brought to an end in order to release you from your liabilities.
If the branch surgery is freehold and a partnership asset, then you will need to take tax advice and speak to your lender if there is a mortgage on it. Failure to do so could put you in breach of your mortgage terms. Remember that you will remain responsible for the branch surgery premises from the date of closure, when payments under the Premises Costs directions will stop.
Conclusion
If you plan well ahead, you can make informed and sensible business decisions that minimise risk. If you would like further advice on closing a branch surgery, terminating your lease or managing staff, then please contact us on 01483 511555 or email info@drsolicitors.com and we will call you back for a free initial chat.
News
Have you received a Section 25 notice from your landlord?
If yes, you need to read this…
A Section 25 notice is an important legal document that can affect a GP tenant’s occupation of the surgery premises. Ignore it at your peril because you could lose important legal rights under the Landlord & Tenant Act 1954 (L&TA).
In this blog, we take a closer look at the L&TA, including the benefits it offers tenants and the challenges you may face if your lease is excluded from the Act. We also set out some steps you can take to reduce the risk of losing your occupational rights when your lease is up for renewal.
What is the Landlord & Tenant Act 1954?
The L&TA is an important piece of legislation that governs the relationship between landlords and tenants of commercial premises. It was introduced to offer greater protection for tenants, and the rights and obligations covered by the Act will be in addition to any terms and conditions set out in your lease.
Is your lease inside or outside of the L&TA?
Check your lease to see if you are protected by L&TA. Unless your lease includes a specific clause contracting you out of the L&TA, then you are likely to be protected by L&TA. This will also generally be the case even if you do not have a formal documented lease in place but have been in occupation and paying rent for a number of years. Most GP practices in NHSPS buildings are protected by L&TA.
Inside the L&TA – benefits to GP tenants
If your tenancy is covered by the L&TA then you will benefit in a number of ways, including:
- You will have an automatic right of renewal. That means that even when the fixed term of your lease ends, you have the right to remain in occupation and to apply to the court for the grant of a new lease.
- If you and your landlord fail to agree on the terms of a new lease then the court can make key decisions, such as the length of the new lease and the rent payable. In our experience it’s very rare for a primary care lease to be litigated in this way.
- When it comes to the length of the new lease, the court is much more likely to agree to a time period requested by a tenant, than by a landlord.
- If your lease payments are linked to the DV’s assessed rent (as all GP surgery rents should be), a court is unlikely to permit a new rent which permits a landlord to break this link, or indeed to permit the introduction of new or significantly varied service charges.
What is a Section 25 notice and what happens next?
If you have a protected tenancy then it will automatically continue under the same terms once your lease has expired unless you or your landlord serve a notice under L&TA bringing the tenancy to an end.
With surgery leases, landlords often use the Section 25 procedure as a positioning tactic and to preserve the value of their property portfolio. Examples are that they want you as a tenant but they want a new lease in place with a higher rent; or they want you to engage in settling a service charge debt. You can read more about the NHSPS service charge disputes here. As a GP tenant with guaranteed rent reimbursement, you are in a good position to negotiate and we have helped many clients reduce their historic service charge debt in return for entering into a new lease. However, you need to be strategic. Whilst it’s usually better to have your lease terms written down in a lease so there is certainty, sometimes there’s a good reason not to want a new lease in place – maybe there’s a merger coming up, retirements, or a new development on the horizon. All this needs to be thought through when deciding how to respond to a Section 25 notice.
There are strict time requirements as to when a Section 25 notice can be served and it must be served on the correct people. We can check this for you – if there are errors the notice may be invalid.
Negotiating a new lease
Once the Section 25 notice has been served on you, your original tenancy will come to an end on the specified termination date. If your landlord has confirmed that they do not oppose the grant of a new lease, you have a strict deadline within which to negotiate and agree a new lease. The deadline in the Section 25 notice can be extended by mutual agreement and it is not unusual to see a number of extensions being agreed while the terms of the new lease are negotiated and the lease is being approved by the District Valuer. All extensions must be agreed in good time before the deadline and in writing. If that deadline passes and no extension has been agreed with your landlord and you have not made an application to the Court (see below), then you will lose your right to seek a lease renewal from the Court under the L&TA. Here at DR Solicitors we manage these Section 25 dates very carefully so as not to compromise a tenant’s position.
If your landlord will not extend the deadline or in circumstances where a new lease cannot be agreed, we can make an application to the Court and that application must be made by the date specified in the Section 25 notice. That’s why you must not leave it too late before asking the landlord for an extension. If an application to Court is necessary a much more extended and complicated procedure is involved, with those proceedings lasting a number of months and quite probably more than a year, unless a lease is agreed along the way. Those proceedings are also costly and to be avoided. It is therefore usually in everyone’s best interests for lease terms to be agreed without the necessity of an application to the Court. I’m happy to say that it’s highly unusual for us to have to make a Court application for a GP lease.
Outside the L&TA – difficulties for GP tenants
If your lease excludes the rights under the L&TA, then there are some key issues you may face:
- When your lease comes to an end on the specified termination date, you will have to vacate the surgery regardless of the impact on patients. Plan ahead! Diarise the lease termination date and get in touch with us to discuss next steps at least 12 months ahead of time. The nearer you get to the lease ending, the weaker your negotiating position with your landlord
- It will be entirely up to your landlord whether or not they decide to offer you a new lease; if they do, then it could be on very different terms to your previous lease including terms which are not going to be approved by the DV. For instance the rent demanded under the new lease may be more than what the District Valuer is prepared to approve and authorise.
While you may be keen for your lease to be protected by the L&TA, your landlord may prefer it is excluded. This means it could become an important part of your negotiations. The arguments for and against excluding it will depend on many factors, including the buoyancy of the current rental market, and your future plans and those of your landlord.
Protecting your practice
The L&TA is a particularly complex area of law, with strict procedures that have to be followed to the letter, or you risk losing your protected rights. Unfortunately, even a seemingly trivial technical error in the processing of notices given in accordance with the L&TA can cause them to be invalid, resulting in some serious and potentially very costly problems for the practice.
We recommend you always seek assistance from a legal professional at least a year before your lease is due to expire (whether or not you wish to renew the lease or bring it to an end) and in the event that you receive any notice from your landlord seeking to terminate or change the terms of your occupation (such as a Section 25 notice).
If you are thinking of leaving a GP partnership then make sure your name comes off the lease when you leave otherwise you could receive an unwelcome Section 25 notice in the post. The partnership deed should also contain robust leasehold succession planning in it to ensure the surgery lease is always in current names.
As with all contract or lease negotiations, it is advisable to seek the advice of an experienced legal team, who can advise you on your specific case and personal circumstances.
For more information about this, or any other legal issue relating to your practice, please contact Daphne Robertson on 01483 511555 or d.robertson@drsolicitors.com
News
NHSPS service charges test case judgment – What does it mean for GP practices?
The long running saga of the 5 NHSPS ‘test cases’ regarding service charges has reached a conclusion. The case has been much hyped by all parties, to the extent that it was named as one of the ‘top 20 litigation cases of 2022’ by one excited journalist. Many practices in NHSPS buildings have been waiting for the outcome of the case, in the hope that it would lead to a resolution of their problems with disputed service charges. In the event, the case has proved less useful than many had hoped. The judge has made clear that he does not consider it to be a test case, and that each dispute will turn on its own facts. In essence, the judge concluded that a tenancy is a contract, and that each practice is therefore bound by the particular agreed or implied terms of their occupation. What is perhaps most surprising, is that this outcome should come as a surprise to anyone.
This rather complicated litigation started when the BMA sought to bring an action on behalf of 5 practices who were tenants in various NHSPS properties, asking the Court to confirm that certain standard policies operated by NHSPS to calculate service charges had not been incorporated into the terms of the tenancies. The court refused to make a declaration to this effect, but NHSPS admitted that they could not simply change the terms of a tenancy to include the policies and a ‘victory’ of sorts was declared. This was however short-lived as NHSPS took the opportunity to countersue the 5 practices for arrears of service charges. It is this counterclaim which has now been determined. NHSPS was seeking over £1m in overdue service charges from the 5 ‘test case’ practices and claims that it is, in total, owed over £175m by its GP tenants. It is clear that very significant sums are at stake.
The facts of each of the 5 tenancies are subtly different, which was undoubtedly why they were chosen for the BMA as a ‘test case’. The main thing they have in common is a general lack of documentation and rigour around any of the normal legal processes. As a result the judge had to untangle a complex web of poorly documented issues relating to each building, including: What demise does the practice actually occupy now and in the past? Which partners have been/are tenants and are therefore liable? What are the terms of occupation? What services have been, and should have been, provided by NHSPS? To what extent did payments made represent an ‘all-inclusive rent’? Were service charges capped or in some other way limited by agreement, including by historic agreement with a PCT? Are any of the claims time-barred?
Probably the most important message from the judgement is that as an ordinary landlord, NHSPS has the right to recover a reasonable service charge for the services which it delivers. None of the practices were able to successfully argue that they should be receiving discounted or free services from their landlord, or that their rent was somehow ‘all-inclusive’. That is not to say that other practices cannot succeed with such an argument, but it would require solid evidence that such an agreement existed rather than simply relying on an absence of evidence. In the words of the judgment: “the law, where appropriate, has to step in and fill the gaps in a way which is sensible and reasonable. The law will imply, from what was agreed and all the surrounding circumstances, the terms the parties are to be taken to have intended to apply”.
The judgment did not determine how much of the £1m claimed from the 5 ‘test cases’ was actually recoverable, but it did set out the parameters by which the amount payable should be calculated. It is thus clear that the 5 practices have a significant service charge liability to NHSPS. However the judge went out of his way to make clear this cannot be seen as a precedent for other practices:
“There has been some reference to these five actions as test cases for other disputes over service charges which may arise between the Defendant and other GP practices. While I express the hope that this judgment will assist the Defendant and other GP practices in resolving disputes over services charges without the need for expensive litigation, I would be wary of classifying these five actions as test cases. As this lengthy judgment demonstrates, and as I have already said in this judgment, the resolution of a service charge dispute in any particular case essentially depends upon the evidence and arguments in that case. This is one of the principal reasons why, for reasons which I have endeavoured to explain in making my decision on whether the Charging Policy Declarations should be made, I do not think that it is sensible for any GP practice to adopt what I would describe as a policy of non-engagement; by which I mean refusing to pay service charges pending explanation of the position by the Defendant. As I have said, it seems to me that a more constructive approach would be for GP practices to take their own advice on the position, and to put their particular case to the Defendant on what is and is not recoverable by way of service charges.”
What, therefore, should practices facing NHSPS service charge disputes do now?
1) Don’t ignore the problem as it is very unlikely to just ‘go away’. Having now proven that there is no blanket ‘NHS exemption’ to paying service charges, it would be surprising if NHSPS simply wrote off the £175m it believes it is owed.
2) You should be paying a reasonable amount for the services that you receive from NHSPS, unless you can clearly demonstrate an agreement to pay less. You should accrue accordingly and pay non disputed charges.
3) If you do not agree with a service charge demand, you should challenge it in writing and explain why you believe it is incorrect. For example, why should you pay for a gardener when there is no garden, for a window cleaner who never turns up, or ‘above the going rate’ for a plumber?
4) Gather as much documentation as you can and store it safely. Since any documentation gaps can be filled by the courts, you want to have as much evidence to hand as possible.
5) Make sure your Partnership Deed is clear about what happens when partners join and leave. Your liabilities to the landlord do not automatically cease when retiring from the partnership unless the lease is assigned (which is difficult if the tenancy is undocumented), so retirees will want indemnities from the continuing partners. Likewise incoming partners will want certainty that they will not be liable for charges relating to the period before they joined, and that a suitable retention is in place for disputed charges.
6) Engage with NHSPS to get your situation ‘regularised’. For most practices this will mean that it makes sense to get a lease agreed, but this should be done in tandem with sorting out disputed historic service charges. It is in everyone’s interest to avoid further expensive litigation, so there will be deals to be done.
7) Most importantly, seek specialist advice. When it comes to buildings, no two buildings and (thus no two leases) are the same. If you start negotiating without proper legal advice, you risk giving away important legal rights without securing anything in return. The most likely outcome for all practices now is a negotiated settlement with NHSPS, but this will be very difficult unless you understand the strength of your negotiating position. With so much money at stake, skimping on advice is likely to prove a false economy.
At DR Solicitors we have very deep experience and success acting for GP tenants who are in dispute with their NHSPS landlord. We understand the issues, and the areas where negotiation is likely to prove most fruitful. Our new partnership deed also addresses these NHSPS issues. Please contact Daphne Robertson or Sue Carter on 01483 511555 for a free initial conversation about your NHSPS surgery issues.
News
What makes a surgery lease different from an ordinary commercial lease
In this short v-Blog Daphne Robertson of DR Solicitors and Paula Mace of Aitchison Raffety surveyors share their expertise in primary care estates, and discuss why a GP surgery lease is very different to any other commercial lease. Produced specifically for GP practices, they identify the key considerations you need to be aware of when negotiating your surgery lease.
Watch this vBlog to understand how they are different.
News
NHS Property Services: Is the end in sight for GP tenancy disputes?
NHSPS put itself back in the spotlight recently, by announcing its intention to increase service charges and facilities charges for GP practices who request changes associated with Covid-19. This will undoubtedly add fuel to the many ongoing disputes over demands for increased service charges. The vast majority of our GP clients who occupy NHSPS owned and managed buildings have been living with a stalemate for the last couple of years, which is causing a variety of problems as time marches on.
The DHSC recently published its review into the current state of NHSPS. You can read the summary here and in this blog, we look at what the recommendations might mean for practices occupying NHSPS buildings.
- For readers who have been hoping that NHSPS would just go away, I’m afraid that won’t be happening anytime soon! There was found to be no benefit in divesting NHSPS of its functions, but rather a recommendation that it align itself more closely to the commissioner footprint and work more closely with NHSE. Having your commissioner and your landlord work more closely together could work either way for practices. One possibility would be that NHSE, as the ultimate funder, agrees to pick up a greater share of the disputed costs. Perhaps more likely though, is that NHSPS and NHSE will put increased pressure on practices to ‘pay up’ by turning the tenancy dispute into a GMS/PMS contractual dispute. This is one to watch carefully.
- NHSPS have been told (again) to regularise all their tenancies. This means that the pressure on GP tenants to sign up to leases will continue, but unless there is a resolution to the service charges issues most practices will continue to be reluctant to sign anything.
- The DHSC recommends that NHSPS “must make progress in customer sectors not currently engaged and ensure that agreement of FM-service and specifications, utilities and management charges are also covered”. In other words, the issues around increased service and facilities charges must be sorted out.
Readers may be aware of the ongoing High Court test case brought by the BMA on behalf of 5 GP Practices to challenge the legitimacy of some of the claimed charges. Whilst this has probably temporarily chilled NHSPS’s enthusiasm for chasing ‘arrears’, and some Practices may also have paused the process for reaching agreement on claimed charges pending the outcome of this test case, the case is unlikely to resolve soon.
The problem for practices though, is what to do about the large NHSPS liabilities now sitting on their balance sheets? As partners come and go this liability becomes a larger share of their capital accounts. We are seeing retiring partners ask why should they leave their capital behind for a liability that no-one believes is really owed? Practices should check to ensure that this question is fully addressed in their Partnership Deed, or alternatively create a separate agreement with retiring partners.
- Potentially the most significant recommendation is ‘to explore & implement changes to the funding mechanism where it will not fundamentally undermine the user-pays model, including central funding of management fees, elements of structural and external maintenance and greater use of direct payment of property costs by commissioners‘. This suggests that there may be opportunities for doing deals where the commissioner pays some or all of the service charges – both historic and possibly ongoing – as a means of breaking the deadlock.
Whilst the offer of somebody discharging your historic service charge liability (and possibly some of the future costs) might be tempting, it is likely that it will come with the strings attached including that you sign up to a new lease. We are very wary of the small print on this one!
So, has our advice to affected clients changed? In short, no. Practices should normally only sign up to a new lease once they are happy with the terms and once any historic service charge issues have been resolved. Even then, Practices need to understand their current legal position as regards their occupation of the premises before being able to make an informed decision about what does and does not constitute a ‘good deal’. This is a complex area and one with lasting financial implications for the sustainability of the practice.
When you are ready to start negotiating with NHSPS we strongly advise you seek specialist legal advice, but in the meantime, practices should agree and document how they will deal with the claimed service charge liabilities as the partnership changes over time.
We have a team of specialist property and partnership solicitors who all have deep expertise in advising primary care professionals on their premises issues. If you would like to speak to one of the team, please call Daphne Robertson on 01483 511555 or email info@drsolicitors.com
News
Retaining your property share after retirement
Continuing our series of blogs on property issues upon retirement, this blog is for you if you intend to retain your share in the premises after retirement, whilst other part-owners of the surgery continue in the practice.
This is a scenario that we are seeing more frequently, as fewer incoming partners are willing and/or able to buy-in to the premises. Whether it is your preference to retain your share in the premises or whether it is something you have agreed to do for a period after retirement to help out your former Practice, the points you should be considering are the same:
- Check if you can you hold onto your property share
Check the terms of your Partnership Deed and any other relevant business documentation relating to ownership of the surgery, such as a Declaration of Trust. These documents will set out what should happen with your property interest upon your retirement. Many Partnerships take the view that a retiring partner should be obliged to sell their share in the surgery to the continuing partners, who in turn will be obliged to buy the share, often within a set timeframe.
Of course, what was agreed a few years’ ago in a Partnership Deed or Declaration of Trust down may not, in practice, be feasible now. However, any change to the position set out in the Partnership Deed or Declaration of Trust usually requires unanimity, so if you are thinking about deviating from the agreed position then you should be having early conversations with the continuing partners.
- Think about the tax and mortgage consequences
Whilst you are a partner, the premises are likely to be a partnership asset (your accountant will confirm if this is the case) and there are a number of tax benefits that follow. If you leave the partnership and retain your share in the premises, you will likely change the status of your property share which could have a significant impact on some tax reliefs you’ve been benefitting from, and in some circumstances could trigger additional tax liabilities such as a payment of Stamp Duty Land Tax. You should have an early conversation with your accountant to make sure you understand the impact of holding onto your share of the property on your individual tax affairs.
If the property is mortgaged you should also check the position with your bank, since many mortgages are based on the premise that the building is wholly a partnership asset. Moving a share of the building out of the partnership may be a breach of the terms of the loan.
- Protect your property income following retirement
Once you leave the partnership you will no longer be entitled to any property income that the partnership receives from NHSE England. You will therefore need to agree with all the continuing partners (both property owning partners and non-property owning partners) that your share of any surgery income is passed to you, and make sure you have legally binding contractual arrangement in place to back up this agreement. There are two main ways of doing this:
- put a lease in place: the property owners (you and the other continuing property owning partners) will, as landlord, grant a lease to the partnership, as tenant. As a landlord, you will have rights to the rental income under the lease. You can read more about putting a lease in place here
- put a Declaration of Trust in place: this document will set out the ownership arrangements between all the co-owners. Importantly, whilst at least one of the co-owners continues as a partner in the medical partnership, you can agree that they will ensure that the surgery premises income is paid from the partnership to the other property owners.
Whether you go for the Lease or the Declaration of Trust option will depend on a number of factors including: tax treatment; how long any continuing property owning partners are likely to stay in the partnership; whether the premises are charged to a bank; what sort of lease terms would you be able to agree and what will the CCG support? These are all matters which should be considered in detail before you retire, since your negotiating position is considerably more difficult after you have already retired.
Our next blog looks at the scenario of a retiring partner who wishes to sell the surgery premises, either to his former partners or to a third party.
We advise that all property owning partners need to start thinking about their property plans at least 2 years prior to their date of retirement. If you are considering retirement and would like to discuss your options in more detail then please contact Daphne Robertson on 01483 511555 or info@drsolicitors.com
News
Protecting your investment upon Retirement
If you are a property owning partner who plans to retire and keep your premises as an investment, allowing the practice to continue to run from them, then this blog is for you. We will be looking at some other variations of premises ownership and retirement, in future blogs.
There are many things to consider when you retire, not least being what will happen to what is probably your biggest investment – the surgery building. Here are some of the main considerations:
1. Whilst you have been practising from the surgery, you will have been receiving notional rent under the Premises Costs Directions 2013 (”PCDs”). Entitlement to the notional rent payment arises solely as a result of the partnership holding a ‘core contract’ with NHSE/the CCG and carrying out the services from owner occupied premises.
Following your retirement from the partnership, you are no longer a contract holder and so you lose any entitlement to notional rent. It is the continuing partners who hold the contract and they will become entitled to reimbursement of premises costs under the PCDs.
2. Before retirement, you may have relied on the Partnership Deed to protect your premises income and to identify those property-associated costs which were to be paid by you, as property owner, and those to be paid by the practice, as business occupation costs.
At the point you retire, you are no longer a party to the Partnership Deed so you need to put a new legal arrangement in place to ensure that have your property interest adequately protected. The way to do this is to put a lease in place.
3. A lease will set out the obligations on both you, as Landlord, and the Practice, as Tenant, in resect of the property, as well as protecting both parties’ interests from a legal perspective. The lease may include provision for the repair and maintenance of the building; the length of occupation and any rights of early termination; what costs each party is responsible for and what changes can be made to the property with or without your permission.
There are many factors to consider when deciding what the terms of the lease will be. How long should it last for? What will happen at the end of the lease term – will you be happy for the tenant to have a new lease? Who is to be responsible for the various elements of the building that may need to be repaired over time? These factors, along with others, will need to be thought through in advance of your retirement.
It is important that you take specialist advice from solicitors experienced in dealing with NHS surgery leases, as if you do not have the correct provisions in the lease you risk it not being approved for funding from the CCG.
4. Timing is very important. If you don’t put the lease in place prior to the date of your retirement, you run the risk of the medical practice accruing protected tenancy rights once you leave the partnership. It can also help your negotiating position if you are able to agree terms whilst you are still a partner in the business. Crucially, any lease terms will need to be approved by the CCG in order to guarantee rent reimbursement, which can take a considerable period of time. If you have a mortgage secured over the surgery premises, you will also need your lender’s consent to the granting of the lease.
Our next blog looks at the scenario of a retiring partner who owns a share of the surgery premises along with others who will be continuing in partnership, and the retiring partner wishes to retain his or her share in the premises. This is a scenario that we are seeing more of, as fewer incoming partners are looking to buy-in to premises.
We advise that GP partners start thinking about their property plans at least 2 years prior to their planned retirement date. If you are considering retirement and would like to discuss your options in more detail then please contact Daphne Robertson on 01483 51555 or info@drsolicitors.com
News
New planning regulations to impact on Surgery flexibility and valuation
If you own your surgery premises, you ought to be aware of the recently announced changes to the Planning Regulations.
The new planning regulations come into force on 1 September 2020 and are intended to reduce red tape and speed up development. One change is that GP Surgeries which currently operate under Use Class D1 will be re-designated as new Use Class E(e)â but what does that actually mean for you?
The most significant change lies in all the other uses which now form part of Use Class E (see the full list at the end of this article). From 1 September 2020, any premises with a Use Class E permission is permitted to change to any other use within Class E without having to obtain a new planning permission. This change applies to existing premises as well as new ones.
Possible benefits?
For GP Surgeries, this means that you could switch the use of your surgery premises from surgery to retail, offices, professional services or as a crèche (as just some examples) without necessarily having to apply to your local authority for a planning permission for change of use.
Wider opportunities for alternative uses may widen the potential pool of buyers which in turn, could increase value (at least for those premises that are at the end of their useful life as a surgery and are to be sold on for different purposes). We will have to wait and see the full implications of this change.
Even if you are not currently thinking of selling your premises, you could still benefit from the changes. It will be easier for you to use part of the surgery premises for another use Class E Рfor example if you wanted to change part of your existing premises into a pharmacy or community caf̩.
A word of caution
Whilst the changes could prove to give a lot of flexibility to property owners going forward, it is important to remember there are other restrictions that could limit how you can use your property. Your Planning permission could contain particular conditions which may limit the use of the property, and may override the changes permitted under the new Regulations. Associated building works may require their own independent planning permission and covenants on the legal title to the property may impose specific restrictions as to use which you may need to deal with. It is advisable to seek professional advice and undertake careful due diligence on all these areas prior to making a significant change to your property, or indeed if you are buying into surgery premises hoping to take advantage to the flexibility that these new Regulations offer going forward.
Finally, a note of warning to any Landlord’s out there – you will need to take particular care when agreeing lease terms with your tenant, to ensure you do not inadvertently give your tenant the ability to take advantage of the flexibility afforded by the new Regulations without safeguarding your investment.
Please do get in touch if you have any questions about your surgery premises or running your practice. Call Daphne Robertson on 01483 511555 or email info@drsolicitors.com
|
âClass E. Commercial, Business and Service Use, or part use, for all or any of the following purposes:- (a) for the display or retail sale of goods, other than hot food, principally to visiting members of the public, (b) for the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises, (c) for the provision of the following kinds of services principally to visiting members of the public: (i) financial services, (ii) professional services (other than health or medical services), or (iii) any other services which it is appropriate to provide in a commercial, business or service locality, (d) for indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public, (e) for the provision of medical or health services, principally to visiting members of the public, except the use of premises attached to the residence of the consultant or practitioner, (f) for a creche, day nursery or day centre, not including a residential use, principally to visiting members of the public, (g) for: (i) an office to carry out any operational or administrative functions, (ii) the research and development of products or processes, or (iii) any industrial process, being a use, which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit. |
News
NHS Property Services lease problems – is a solution in sight?
If you are a practice which occupies an NHSPS building, then you may well have received a letter from NHS England and NHS Improvement in April which encourages GPs to regularise their leasehold and service charge arrangements with NHS Property Services. The letter states that it is in the best interests of both Landlord and Tenant to have clarity and certainty on occupancy arrangements, but also threatens ‘legal recourseâwhere it is evident that GPs and Providers are failing to engage’.
You are now being offered 3 options:
- a full lease;
- a rental agreement letter (as an interim measure); and
- a licence for you to join Open Space.
To help you decide which of the 3 options might be best for you, we have summarised our thoughts on the legal implications below. However, our views expressed in previous blogs about NHSPS remains the same, and ‘doing nothing’ may remain an option for some practices if the terms on offer are not sufficiently attractive.
Option 1: a lease
Whilst the clarity and certainty of a lease is generally the preferred outcome, this is only the case if any lease arrangement is sustainable. This is particularly the case for building maintenance costs and other ‘non rent’ costs associated with a lease.
Many readers will be aware of the ongoing service charge issues between NHSPS and many GP practices with large, and in some cases, unsustainable service charge increases being imposed by NHSPS as landlord. This has been and remains one of the major obstructions to practices being able to enter into a lease with NHSPS and it is important that these issues are resolved before any long term lease arrangement is put in place. In case you missed it, you can read our blog on what you can do about inflated NHSPS service charges.
Whilst the letter does acknowledge the ongoing problems with service charges, it doesn’t offer any clear steps or processes which might resolve the issues.
Option 2: a rental agreement letter
A ‘rental agreement letter’ is not a legally defined term, so there is little indication of what rights and obligations it might contain. The letter states that a ‘rental agreement letter’ would only be an interim measure, giving clarity on certain occupancy terms (such as rent, payment terms etc) whilst long term lease terms were negotiated. We are concerned that such a document could override your current occupancy status and any rights you may have accrued over time and thereby prejudice your negotiating position, so would certainly advise anyone considering signing such a letter to seek legal advice first.
Option 3: licence to use NHS Open Space
NHS Open Space is a ‘room hire’ service, allowing users to book rooms on a sessional basis. Users would have no right to use the space beyond the session for which they have booked it. The service might be able to compliment your existing premises if you have a short term need for extra space perhaps to run a temporary additional clinic or a staff training day, but it is not a substitute for your main surgery premises as it conveys no security of tenure. There is also no detail about how such an arrangement could be reimbursed through the NHS premises funding, and we are not aware of any current standard mechanisms for this.
Next steps:
NHSPS are clearly minded to seek to resolve this ongoing problem, so now may be the time for practices in NHSPS buildings to enter (or re-enter) into a dialogue. We sense there is a will to resolve the service charge issues on a case by case basis, and we have seen a number of positive outcomes.
When negotiating, make sure you take professional advice from a specialist solicitor and a surveyor. Remember that whilst you may not have a written lease, you still probably have a tenancy with the important tenant protections that can come with this. Knowing your legal rights can strengthen your negotiating hand and help ensure your lease is drawn up on a sustainable footing from the start.
For a free initial chat about this or any other legal concerns you might have, please contact Daphne Robertson on 01483 511555 or email info@drsolicitors.com
News
Leasehold dilapidations – how to prepare and protect yourself
Leasehold Dilapidations – how to prepare and protect yourself
Many GPs are apprehensive about becoming a named tenant on a leasehold surgery. There are of course a number of liabilities that could be imposed on a tenant under a lease, and you may have read our previous blogs on the subject of last man standing and the importance of agreeing a break-clause. Another issue to consider is the obligation to maintain and repair the premises both during and at the end of the lease term. Almost all surgery leases will impose an obligation on the tenant to repair the premises to some degree or another. ‘Dilapidations’ is the terminology used when a landlord seeks to enforce the repairing lease obligations.
When might the dilapidation liability occur?
In practice, most leases allow the landlord to serve a schedule of dilapidations on a tenant at any time during the lease term. This is because the tenant’s obligation to repair the premises is an ongoing obligation. If the premises are starting to fall into disrepair and the tenant is not complying with their lease terms to maintain them, the landlord needs the ability to force the process during the lease term. Whilst this right exists in most leases, unless there are significant ongoing problems relating to the tenant’s lack of maintenance in practice it is not often used by a landlord. It is far more common for a landlord to be concerned about repairing obligations when the lease is coming to an end. At this point, the landlord’s mind will be on future tenants and the rent they might achieve: the better the condition of the premises, the more valuable they are and the easier it will be for the landlord to charge a higher rent. They will therefore look at whatever rights they have available to them to improve the condition of the premises.
How much is it likely to cost?
The extent of your liability as tenant will depend on how your lease is drawn-up. For example, some leases may limit the tenant’s repairing obligation to keeping it in no better a state of condition than it was at the start of the lease term. Other leases may be what we call a ‘full repairing lease’, in which case the obligation is to repair all parts of the premises whether or not you caused that disrepair in the first place. Before you enter into a lease, it is very important to assess at the outset what your likely dilapidation liability may be at the end of the lease. You should seek legal and surveyor’s advice, so you understand the condition of the premises and what the language in the lease will mean in terms of your obligation to repair.
Be aware that dilapidation settlements are inevitably a horse trade between the landlord and the tenant. In our experience, a landlord will often seek to recover more in the first instance than they are entitled to and use this as a negotiating position to work down from. There are also important protections at law for tenants that can in some instances cap the amount they are required to pay. If you do receive a dilapidations demand from your landlord, you should consider taking surveyor’s advice as to whether the amount is appropriate and legal advice to establish whether the sum has been lawfully demanded.
How to manage the risk
Understanding your leasehold obligations will allow you to plan as a business how to avoid large and unwelcome bills from the landlord. It is good advice to accrue an amount year on year towards the costs of these liabilities. You may do this by setting up a sinking fund, into which each Partner contributes an agreed amount towards future dilapidations. You will need to set out how the sinking fund is created and managed in your Partnership Deed, so do make sure you have an up to date Partnership Deed that allows you to do this. A sinking fund also helps mitigate the risk of partners seeking to avoid a large dilapidations bill by retiring just before the end of the lease term.
In some circumstances, some of the dilapidations liability may be reimbursed through your CCG. This may be paid by way of a top-up element to your monthly rent reimbursement , in which case it is prudent to pay such sums straight into a sinking fund so it is available when you might need it. Funding may also be available at the end of a lease term, particularly where you are relocating to alternative premises with the support of the CCG.
Summary
Be prepared – adopting some relatively simple financial management during a lease term can pay dividends at the end. Make sure your partnership deed is up to date and documents how dilapidations costs will be shared and financed. Finally, if you do receive a dilapidations demand from your landlord: don’t panic; don’t just agree it at face value; and always seek professional advice.
If you have any questions on dilapidations or any other NHS premises related queries, please contact Daphne Robertson on 01483 511555 email info@drsolicitors.com