Posts Tagged ‘construction lawyers’

Landlord and tenant works – Construction Industry Scheme payments now made simpler

Posted on: June 13th, 2024 by Natasha Cox

In brief:

Regulations were introduced in April of this year which removed the uncertainty and complexity on which payments made by commercial landlords to tenants are covered by the Construction Industry Scheme (CIS). As a result,  the majority of such payments will now fall outside the scope of the CIS and the requirement for deductions as advance payments towards a sub-contractor’s tax and National insurance to HMRC.

The pre-April 2024 rules created a cumbersome legal and administrative obligation and the removal of these compliance burdens must be welcomed.

Legislation

The Income Tax (Construction Industry Scheme) (Amendment) Regulations 2024 (SI 2024/308)  introduced in April 2024 added a new Regulation 20A to the main CIS regulations which specify that payments made by a landlord to a tenant for construction operations in connection with a lease or agreement for lease are not contract payments and are, therefore, outside the scope of the CIS.

To fall within the scope of this exclusion, payments must meet the following conditions:

  • The payment is made by or on behalf of a landlord;
  • The payment is received by a tenant or prospective tenant (tenants include sub-tenants);
  • The payment is for construction operations agreed in connection with a lease or agreement for lease;
  • The tenant that occupies or will occupy the property will carry out the construction works themselves or contract with a third party to undertake the work; and
  • The payment must be for construction operations relating to works intended primarily for the benefit and use of the tenant that occupies or will occupy the property under the lease.

The definition of ‘landlord’ includes a person with the legal or beneficial ownership of the property, who granted the lease or who will grant the lease.

What does this mean?

Under the pre-April 2024 rules, and prior to entering into any agreement relevant to the construction operations, both the landlord and tenant were required to take legal and taxation advice in order to jointly agree and document that any payments from the landlord to the tenant regarding such construction works either fell within the exclusion for ‘reverse premiums’ in Regulation 20 of the main CIS regulations so that they fell outside the scope of the CIS – or they did not and deductions would need to be made. 

Although contributions made by a landlord towards the tenant’s own fit out works were easier to assess, it was far more difficult where a contribution was being made towards the tenant undertaking Category A fit out works. This led to some landlords being more ‘careful’ in requiring the operation of the CIS on such contributions. Tenants were being asked to take on the added cost of CIS deductions –  as well as the added administrative and cash flow burdens of having to reclaim the amounts deducted. 

The new exclusion under Regulation 20A should lead to most payments by landlords to tenants (or prospective tenants) for construction operations being defined as outside of the scope of the CIS. However,, the implications of Regulation 20A do need to be fully understood.  Most notably,is the requirement that the landlord’s payments must be for construction works intended primarily for the benefit and use of the tenant. This means that any payment which relates to works outside the property occupied by the tenant is likely to fall outside the new exclusion and will therefore remain within the scope of the CIS.

As a reminder…

The new regulations do not affect the application of the CIS to payments by tenants to landlords for construction operations. Take an example where where the landlord has agreed to undertake the tenant’s own fit out works., While these payments will continue to usually fall outside the scope of the CIS, if the tenant will be sub-letting part or the whole of the property or they are registered with HMRC as a so-called ‘contractor’, the CIS deductions would apply in accordance with  Regulation 24 of the main CIS regulations for payments in respect of property used for the purposes of the business of the tenant or another company in the same group.

If you need any advice on the Construction Industry Scheme or any other aspects of construction law, please contact our team of experts Anne Wright and Tom Pemberton.

 

JCT Design and Build Contract 2024 – the first in the next generation of building contracts

Posted on: May 17th, 2024 by Natasha Cox

The JCT 2024 Design and Build Contract (JCT DB 2024) represents the first major update of the JCT forms since 2016.  The underlying structure has not changed, but the JCT has taken the opportunity for a comprehensive refresh of the JCT DB main contract and sub-contract forms.

A number of changes have been made, including the following:

New Relevant Events:  For the first time, JCT DB 2024 expressly entitles the Contractor to an extension of time if practical completion is delayed by:

  • a shortage of labour, services or materials caused by an epidemic which first occurs after the Base Date or whose effects change after the Base Date – this is the JCT’s considered response to the Covid-19 pandemic; or
  • a change in primary or secondary legislation or in guidance published by the government or other specified bodies which affects the execution of the Works – this would, for example, capture guidance by the Construction Leadership Council which is not legally binding.

While the principles seem fair, the new Relevant Events are broad in scope and we anticipate that many employers will seek to exclude them or limit their scope by making appropriate amendments. 

New optional Relevant Matters:  To complement each of the new Relevant Events noted above, there is an option in the Contract Particulars for an equivalent Relevant Matter. This would entitle the Contractor to recover the loss and/or expense it as a result of these events.  

We expect that a compromise position will be agreed in many cases allowing the new Relevant Events to apply (albeit perhaps with amendments to limit their scope), but not the optional Relevant Matters.

Termination:  If the relevant events/matters described above cause the works (or substantially the whole of the uncompleted works) to be suspended for a longer period than that identified in the Contract Particulars (the default period being two months), this is potentially grounds for termination by either party.  It is safe to assume that, had this provision been included in the JCT 2016 suite, the consequences of the Covid-19 pandemic would have been much harder for developers and their funders to manage.

Other changes have been made which impact on the parties’ rights to terminate, including the extension of the definition of insolvency. Changes have also been made to the provisions relating to payment on termination, reflecting the not so recent Construction Act notice requirements.

Limitation of the Contractor’s design liability: clause 2.17 has been comprehensively redrafted to make it clear that the Contractor has no greater duty in relation to design (to the extent permitted by the Statutory Requirements) than to exercise reasonable skill and care.   To drive the point home, there is an express exclusion of any obligation that the Contractor’s design must be fit for purpose.  While this was undoubtedly the intention behind the 2016 edition, employers and their advisory teams will no doubt look to close the gap between ‘reasonable skill and care’ and fitness for purpose without losing the benefit of the Contractor’s PI insurance which will not cover unqualified fitness for purpose liability.

Extension of time and liquidated damages:  Detailed changes have been made to the liquidated damages regime (reflecting recent case-law) and the timescales which apply to the extension of time procedure. 

Other changes: Provisions relating to collaborative working, sustainable development and environmental considerations, and the notification and negotiation of disputes have now been elevated into the core Articles and Conditions.  These were previously optional supplemental provisions so these changes represent an evolution of the JCT form rather than being radical changes.  

Various other detailed changes have been made and we recommend that users of the form purchase the tracked change versions published by the JCT to accompany the new forms which shows the changes in redline.

Template schedules of amendments need to be updated to address the changes in the JCT DB 2024 forms.

At Lawrence Stephens, our Construction & Development Finance team can advise on how best to navigate and use this new suite of contracts. 

Please contact Tom Pemberton if you have any questions regarding your project or the JCT forms.