My clients are tenants of a 115 year lease of airspace, which they have agreed to surrender in return for the grant of 4 individual leases of the same airspace for the same term. The parties to the original lease were the Landlord and H. This lease was subsequently assigned from H to H and W (connected parties) who own jointly and equally. The lease is charged, and upon the surrender and re-grant a new legal charge will be entered into in respect of one of the 4 leases to be granted.
Will the Para 16 relief apply in light of:
a) the regrant taking the form of 4 separate leases (my gut reaction is that it would);
b) the fact that the lease has been assigned so the surrender and regrant is not wholly between the ‘same parties’ – if the releif is not available for this reason, it would seem very restrictive.
The re-grant in the form of four leases should be ok: see SDLTM11070. I don’t think that the fact that the original lease was assigned makes any difference as it is the identity of the parties at the time of surrender and regrant which counts. Additionally although one of the new leases will be charged upon the release of the charge on the surrendered lease, I doubt that this can be treated as chargeable consideration under para 8 Sch 4 assuming that the tenants are just transferring the same debt to one of the new leases.