(2026-May: Linked) Lawyers like certainty. Don’t we all? Certainly enables us to rely on it. For example, the weather forecast. This is not a certainty, it is a forecast yet many people rely on this scientific prediction as if it is certain it will rain tomorrow even when tomorrow arrives it is dry. My theory of the weather is that it listens to the weather forecast and decides that the best time to not do as it is told is during a bank holiday weekend. I am fond of telling friends that i have an arrangement with the weather. The arrangement is that sometimes the weather can let me down as, for example, happened a long time ago when with a friend we set off to walk the 7 miles around London’s Richmond Park, she with umbrella, me unprepared for an afternoon of rain.
Lawyers like certainty for its objectivity, so it is fascinating how many disputes at rent review involve a different interpretation. For example, In the wording of a permitted user, the innocuous ‘and’ – whether conjunctive or disjunctive?
Currently, I am reading about valuation yardsticks. For those unfamiliar with the terminology, a yardstick provides certainty where none would or might otherwise exist. For example, the permitted use is a dental surgery, the valuation basis is offices. The fact if it is that the premises used as a dental surgery do not have and might never get planning permission for offices is irrelevant. The parties, most likely the landlord, wanted the premises to be valued as if offices. Sometimes the intention in being too specific goes awry as in Dukeminster (Ebbgate House One) Ltd v Somerfield Properties Co Ltd 1997.
For a landlord, hinging a rent review onto something other than the vagaries of the open market – in which the rent of the premises in question rely on the certainty at the review/valuation date of another landlord having obtained a higher rent for comparable premises – makes sense. During the 1970s, the institutional investor invention of the upward-only rent review recognised the downside of allowing the open market to be an arbiter. So now that it’s only a matter of time before upward-only review is banned, and forward-thinking has for the most part put a lid on index-linking, a solution, it seems to me, is to hinge a review to two figures: (1) a fixed increase at say 25% of the initial rent and (2) a fixed decrease at say 10% of the initial rent. With the initial rent known in advance, the tenant would know the maximum and minimum rents applicable at the review date and be able to negotiate between the known extremes.
(2025-May: LinkedIn) Auctions on-line: a worrying trend: taking more on trust than in the old days.
In the old days, not that long ago, auctions were held in rooms: a combination of prospective bidders physically present and telephone bidders. Part of an auctioneer’s job is to get the bidding started and continuing even if imaginary. The advantage of presence enabled others to see the bidding by bidders putting their hands up (or regular buyers a physical signal known to the auctioneer, such as a nod) With no need to register beforehand, impulse bidding possible. Auction fever common, buyers carried away by the excitement into overpaying. (When I lived in London, I sold my house, a thatched cottage, at auction: the auctioneer got the only bidder in the room to bid against herself up to the reserve price.) On the fall of the hammer an auction lot is sold subject to the buyer signing the auction memorandum (binding contract) and paying the deposit, normally 10%. An auctioneer’s assistant would get the buyer to do that straightaway. It was still possible for the buyer to do a runner immediately, but unusual. It was also possible for a buyer to fail to complete and lose the deposit, but at least the seller got 10%. Once upon a time, completion was 4 weeks. It became extended to enable buyers to get loans arranged.
Auctions on-line only have a different dynamic. A bidder has to be registered beforehand, usually the day before, (usually before 6pm – auctioneers go home early!). There may be other reasons for the seller withdrawing, but in any event no registered bidders means on the day of the auction the property is withdrawn.
At auction on-line, there are.only three ways to buy without being a registered bidder: prior to auction, after no sale at the auction, someone else registering as the bidder, be the winning bid to purposely jeopardise the sale, fail to sign the memo and pay a deposit, and hope to get it for less after the auction.
An auctioneer is authorised to sign the memorandum on behalf of both parties, but zero deposit. Although a memorandum is a binding contract, without a deposit, nothing for the seller to get without taking the buyer to court incurring the extra costs to begin with.
Auctioneers can blacklist time-wasters and do: Word gets round. But for credibility such buyers buy occasionally so difficult to prove. Sellers are none the wiser until after the event.
Selling prior is about judicious choice. Where the offer is above the reserve, and more than one offer prior, it doesn’t follow the highest is best choice. Allowing an accepted offer time to sign the auction contract and pay the deposit eats into the time remaining between acceptance and the auction. I have been a seller at auction twice. Once my own house, the second an executor not prior – In the room were several bidders and win completed. As an adviser to clients selling at auction, lots of times, including prior. Greed versus caution? After due diligence, gut-feeling best.
(2026-May: Linkedin) “I always find Michael’s comments welcome reminders of what a retained agent should be in terms of expertise, knowledge, application and common sense. Even in my world of media assets, possibly even more so, finding the right agent/expert is critical. Sadly, in my world it is often true that landlords are taking advice from agents/experts who actually know nothing or have relied upon hearsay and corrupted evidence. One such example was a City asset management team recounting and relying upon evidence supplied to a neighbouring City team as ‘evidence of the open market’ when that evidence was actually supplied by their tenant in negotiations.”
Posted on LinkedIn by Tim Thomas; Chartered Surveyor acting exclusively for landowners in the management of OOH and DOOH media assets since 1990.
(2026-May: LinkedIn) Ai? Third parties beware. Expert witnesses also.
Association des ressources intermédiaires d’hébergement du Québec (ARIHQ) c. Santé Québec (2026 QCCS 1360): “Arbitrator relied on non-existent legal authorities, strongly suggesting the use of generative AI.”
“In an unprecedented move, the Court annulled an arbitral award after finding that the sole arbitrator had implicitly delegated his decision-making authority to a generative AI tool, which resulted in the inclusion of “hallucinated” jurisprudence and legal doctrine.”
“When parties agree to arbitrate, they contract for a bespoke dispute resolution process wherein a specific human tribunal exercises independent intellectual judgment. The use of an unverified Large Language Model (LLM) to draft the award’s substantive reasoning is a structural deviation from this agreed procedure. Furthermore, feeding confidential submissions into a public AI tool violates the confidentiality and secrecy of deliberations inherent in arbitration.”
“The Court emphasized the intuitu personae nature of arbitration—the principle that an arbitrator is chosen for their personal expertise, judgment, and authority. Relying on an AI tool to formulate the substantive reasoning without verifying the output violated the fundamental maxim delegatus non potest delegare (a delegate cannot delegate) and breached the secrecy of deliberations.” “The Court, however, added a critical caveat: not every use of AI will automatically lead to annulment. If the AI usage is minimal, or if the hallucinated references do not form the crux of the reasoning, the award might survive if the breach did not fundamentally taint the proceedings.” [Source: Lexology 4 May 2026; Wasel & Wasel – Mahmoud Abuwasel]
It is well-known that where Ai doesn’t know the answer it makes things up to be helpful. Rather like a human being would/might.
In every expert witness report I write, I confirm that there is nothing in the report generated by or sourced from artificial intelligence, unless otherwise stated.
I call upon the RICS to make it a requirement for all chartered surveyor arbitrators and independent experts. and chartered surveyors acting as expert witness to include a similar confirmation.
(2026-May: LinkedIn) It is said that surveyors that specialise in rent review have a deeper understanding of business tenancy law than most. So using that knowledge for something other than rent review makes sense. Hence, I specialise in rent review and business tenancy advice.
“And business tenancy advice” is a wider field than just rent review. For example, service charges. I’m advising in a unusual dispute between two unrelated freeholders. A owns the property, B (for whom I am acting) has to pay a fair proportion of the cost of the services provided for the shared part of the A’s property. The dispute is about the value for money of work undertaken by contractors instructed by A’s managing agents.
I am advising the landlord on the apportionment for keeping the building and main structure wind and water tight. Researching case law for the meaning of ‘wind and water tight’ reminds many variations to the word ‘repair’. I found a case about a hedge between two fields and whose obligation to maintain the hedge where there is no documentary evidence: another ruling for my collection of might come in handy one day. From that collection something that has proved useful on numerous occasions is the word ‘condition’ as in “in good and substantial repair and condition” – more than mere repair.
Where a lease requires the landlord’s consent for alterations to be in writing, what happens at rent review, where a disregard is tenant’s improvements not in pursuance of an obligation to the landlord, if the tenant has altered the premises without any documentary consent and the landlord at the time has since deceased?
You might think these are the sort of questions best answered by a solicitor and/or barrister and often I think so too. The client knows they’ll get better value from me, my fees more reasonable. So where I know I can help I accept the instruction. On service charges, I have ample experience to act as expert witness, but don’t set out to attract instructions because service charge disputes are fiddly so for me the deciding factor whether to tackle the task is the client’s ability to pay regardless. As for how to calculate the proportion where the lease does not stipulate a percentage, Rateable Value proportion is problematic where part of the building is residential and RV inapplicable.
Second opinions – in the past two years I have advised on 4 single joint expert witness opinions by chartered surveyors. I wish I could say they were up to scratch but all fell short, three by a long way.
I had a go at Rateable Values and reduced some for a multiple retailer where the client’s regular surveyors hadn’t reduced as far as I did – I suggested to the client the reason being that the rating surveyors couldn’t be bothered to fight to the last because the extra fees weren’t worthwhile. But after the rules changed and overcoming the VOA’s deterrent became for me invincible without know-how, I gave approximately 25 instructions to specialist chartered surveyors.
(2026-Apr: LinkedIn) The ban on upward-only rent review is on the statute books. The English Devolution and Community Empowerment Act 2026 received Royal Assent on 29 April 2026. Next step in force date.
Since the Bill was published on 11 July 2025, I have not encountered any tenant wanting the review basis in a new lease or renewal lease to be open. The requirement for an open review (upward/downward) not brought on by the prospect has been on restructuring, the usual insistence for a day-one review to market rent, as if the lease were renewed under LTA54.
What started as an institutional investor desire for certainty has become a feature of the commercial property investment market. The way that tenants have avoided upward-only review is a short term lease.
I do not get involved with property finance – ungentlemanly. That landlords have accommodated short leases, either by agreement or no choice, does not appear to have made much difference to borrowing to buy the investment. I should think short term leases more of a problem for landlords whose existing loan facilities are due for review and the lender’s assessment of the borrower’s commercial property knowledge is risky. At a guess, any borrower that obviously knows what they’re talking about is less likely to be of any concern for the lender. It is the difference, I should think, between mortgaging each property and a debenture.
Institutional investors wanting certainty implies that such investors would not want to take the risk otherwise. I cannot think of any other type of alternative investment that is a one-way bet. Given that investors were buying commercial property long before upward-only review existed makes me think that what is likely to have happened was the introduction during the 1970s of the open market review, as a replacement for the previous pre-fixed incremental increase every 7, 14, and 21 years. Assuming that is correct, there is nothing to stop landlords and the commercial investment market generally from reverting to as was and having fixed increases intervals.
The only real difference is the effect of inflation but how to estimate what a future fixed-increase should be is easily overcome by valuing every investment as reversionary, not rack-rented. For example, a pre-fixed uplift to £100, 000 pa that when the time arrives transpires should be £120,000 would be valued on the erv £120,000 pax.
How to get £120,000 payable could also be overcome, for example, by having an artificially high fixed £150,000 pa payable only if comparable evidence supported the rent at the time. The ban does not prevent pre-fixed rents because they are known about beforehand. The ban does not prevent a landlord from agreeing a lower rent so why not have a prefixed amount that was always likely to be be a non-starter?
i(2026-April: LinkedIn) have a track record of accurate predictions. it’s easy to get something wrong, but actually I think it’s easier to get it right when you know your subject or market inside out. The entire commercial property market is too big to know inside out, at least I think so, but sectors and segments aren’t.
The direction the shop property market is taking has been easy to predict for decades. What has caused the decline of trading positions including ‘high streets’ was easy to pin-point, long before out-of-town malls and retail parks, and such like. The knock-on-effect of comparable evidence destabilising trading positions occupied by established multiple retailers whose magnetic presence was the attraction in the first place meant that when they relocated to better value for money positions they took their customers with them.
Capitalising on yield compression introduced another layer to the investment market, in the process uncoupling the inter-dependent relationship between rent and capital growth. Yield compression is a play on interest rates. Rent’s role to set the amount to stake on the bet. Buy at for example 8% when interest rates are 5%, and sell when interest rates are 0.1%.
A few years ago the RICS top brass had to call in a QC to report on governance. Last year, the RICS claimed a shortage of surveyors; a point I picked up on as RICS-specific, rather than a shortage generally. As a career move the relevance of the RICS is questionable. It has nothing like the potential afforded to solicitors and chartered accountants.. For some tasks it is necessary to be a chartered surveyor, but not for the really-profitable services – for example, agency – all one needs is a reputation for trustworthiness and competence, both of which are readily-earned simply by being knowledgeable, consistent, and ethical.
I don’t think one can buy ethics. Principles, moral stance, are reflections of personal belief, attitude and conduct. I’ve said this before, but the fact that the RICS has to publish Core Principles suggests to me that too many of its members need to be reminded in case they stray from what is expected. But why would anyone want to stray of their own accord unless tempted or lured. Which begs the question how come they got over the barriers to entry to begin with? One answer is the RICS need for revenue.
I’ve identify several contradictory factors that to my way of thinking do not make sense for an institution that prides itself on professional standards and ethics. And they are certainly not behaviours that I would ever want to stoop to. Yet the RICS sees nothing wrong, nothing unethical.
The way things are going I predict the RICS will not exist within the next 25-40 years because it will have done itself a disservice.
(2026-Apr: LinkedIn >1959 views) Academic qualifications in the property world used to mean something. That the person had made an effort to learn and had proved they’d absorbed by passing an examination. The process continues. Except that there are so many people doing it that somehow it has lost its meaning and instead has become an expensive way of not meaning as much as it did.
To have become a chartered surveyor involved a lot of studying before the hallowed ceremony. But not anymore. Nowadays a person can become a chartered surveyor at the halfway stage. Perhaps a form of encouragement or simply another way of extracting money but whatever the point, to become an AssocRICS doesn’t make sense.
What a chartered surveyor is allowed to do also doesn’t make sense. Registered Valuer? Surely if someone is allowed to call themselves a chartered surveyor they should be allowed to accept instructions for anything they want?
For a firm to call itself (name) chartered surveyors doesn’t require all its principals to be chartered surveyors.
Then again there are many things about the RICS that don’t make sense. For example, for an organization that promotes ethics and professional standards, it permits the unethical practice of seeing nothing wrong in its members acting for the tenant at one rent review and acting for the tenant’s landlord at the next review. I wouldn’t do that. Even if the tenant wouldn’t want to reinstruct me I still wouldn’t if asked act for the landlord.
As for the way it handles complaints against third parties, the one and only time I’ve done that, every aspect of my complaint was parried as if the third party couldn’t possibly have done anything wrong. It did introduce me to some requirements that I have since requested, such as wanting the third party to provide a timesheet for the costs. But I’ve yet to encounter a third party that will comply with the RICS GN that third parties ought not charge the same hourly rate for administrative tasks.
When you stop to think about it, there are not many things in the property market that need a chartered surveyor. Agency? No. Valuations? No. Schedule of Dilapidations / Condition? No. Rent Review? No. Advice? No. Rateable Value? No. Expert Witness? No. Single Joint Expert Witness for Court? Yes. During the past 2 years I have been instructed to find flaws in several chartered surveyor SJEW reports; I find far too many.
Let’s face it. Standards are slipping and the one organization that could do something about it isn’t.
(2026-April: LinkedIn) Currently, with an upward-only review and when acting for the tenant, although the open market rent should be agreed or ascertained regardless, it’s more usual to regard that as academic – the rent payable immediately before the review would continue unchanged (unless the lease stipulates otherwise). Academic perhaps but a memorandum akin to ‘nil increase’ doesn’t necessarily mean the premises are over-rented so, as comparable evidence, a landlord can benefit from tenant’s indifference. The new challenge is that a downward review removes the cushion that surveyors lazily relax on and replaces it with a need to value. Except for the differences, if any, between the hypothetical lease and sections 33 to 35 LTA54, an upward / downward open market rent review requires a similar approach to valuing the market rent on renewal of a lease inside LTA54.
(2026-Apr: LinkedIn >800 views) Upward / downward rent review will not, in my view, be an issue for institutional commercial property investors judicious in buying.
Unlike private investors whose time-horizon ranges from personal pension to generational, with rarely any wider responsibility, institutional investor decision-makers are more likely responsible for hundreds/thousands of people whom they are unlikely to meet. So one might think that such decision-makers a lot more cautious and not throw it to the wind.
During the 1970s, for no logical reason, the minimum price for institutional interest in a retail property investment used to be £250,000. Soon after I established my practise, I acted for an insurance company on rent reviews in 4 parades of shops so naturally my first choice for any shop investment that I thought it should buy. When a landlord with two shop investments in a town centre high street asked whether I had any clients to buy them for £50,000 each, I thought the properties had long-term potential so when I sent the details to my client I wrote a short report with my reasoning. The insurance company thanked for the report but declined because of the price range. I thought it very shortsighted and was proved right when years later the same insurance company paid five times as much for a shop investment nearby.
There are not many towns in England and Wales that have perennial growth potential, probably no more than half a dozen. Generally what happens is a cut-off point at which it becomes too expensive commensurate with a level playing field. Something has to give. In a market based on competition ultimately there can only be one winner in each market sector which means everyone else falls by the wayside.
Capital growth that depends on yield compression requires high interest rates when buying and shrewd selling when interest rates fall. But the propositions to buy only come onto the market when prices are high because interest rates are low. Overpaying is rife. Rent increase comes from the existing tenant able to afford to pay more or a new tenant thinking it can afford to pay more.
For an institutional investor, the illiquidity of commercial property is high risk. Get the timing wrong on buying, easy to overpay. It is much easier to time buying shares in a quoted property company than direct investment. Unlike commercial property valued infrequently, shares on the stock market are valued every second during trading hours. Unlike direct investment whose value is an informed opinion, but an opinion nevertheless, of one or a few valuers, a share price is the opinion of hundreds/thousands of ‘valuer’ actual buyers. Currently, share prices of quoted propcos owning prime property offers about the same yield as direct investment, but with none of the costs and risks of direct investment.
Upward/downward review removes the cushion hiding the poor decisions made by Institutional investors, most of which should never have bought into direct investment.