Landlords will welcome a recent Court of Appeal decision that means they can recover rent from an administrator of a limited company tenant in administration, whenever the administrator was appointed.
The objective of an administration is to try to rescue the company and prevent it going into liquidation so an administrator will usually try to ensure the company continues trading.
If the company leases premises and the rent payable is an expense of the administration, it will (almost always) be paid in full to the landlord before money is paid to other creditors of the company. The landlord has priority, including over the administrators’ own remuneration and expenses (although not over claims under a fixed charge). However, if rent payable is not treated as an expense of the administration, but merely as a provable debt, the landlord ranks as an unsecured creditor with no such priority and will often not receive any rent.
In an important case in 2012, the High Court said rent that had fallen due before an administrator was appointed – for example, quarterly rent payable the day before an administrator was appointed – was not an expense of the administration. Therefore, it did not have to be paid in priority over other creditors, even if the administrators went on to trade from the premises for all or part of the remainder of that quarter.
Following that decision, many administrators made sure they were appointed the day after the date when a quarterly rental payment fell due, so they did not have to treat the payment as an administration expense.
However, in a new case involving £3m of unpaid rent the Court of Appeal rejected the administrator’s argument that as he was appointed the day after the rents became due, they were not an administration expense. Reversing the previous High Court decision, it ruled that:
• administrators must pay rent in relation to any period for which they keep possession of premises for the benefit of the administration, irrespective of when they were appointed;
• such rent is an expense of the administration, so the landlord has priority;
• such rent is treated as accruing from day to day.
Administrators must therefore now make rental payments for as long as they keep possession of premises for the benefit of the administration – ie on a ‘pay as you go’ basis. The rent is treated as accruing from day to day and is payable as an administration expense.
This ruling will apply equally to liquidators in the winding up of a limited company.
• In the event that a tenant looks likely to go into administration, landlords should try to recover rent that has fallen due quickly.
• Landlords should approach new administrators as soon as possible, and find out whether the administrator intends to continue use of the premises and whether this is for the benefit of creditors.
Case refs: Goldacre (Offices) Ltd v Nortel Networks UK Ltd  EWHC 3389
Leisure Norwich (II) Ltd and others v Luminar Lava Ignite Ltd (in administration) and others  EWHC 951 (Ch)
Pillar Denton & Others v. Jervis & Others  EWCA Civ 180
Alex Cook is a Director at Helix. Alex initially trained academically as an unregistered barrister and was a Partner and Head of Civil Litigation at a large firm based in the South East before joining Helix Law. As well as focussing on expanding Helix, Alex specialises in commercial and property related litigation and he has acted for a broad range of clients including offshore property investment funds, small businesses and individual property owners.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.