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assignments can occur in equity when any of the requirements of legal assignment are not satisfied.
The assignor can inform the assignee that he transfers a right or rights to him or instruct the other party or parties to the agreement to discharge their obligations to the assignee. Only the benefit of an agreement may be assigned. There is no requirement for written notice to be given or received. The position of a party who wishes to be able to make an equitable transfer of obligations under the contract is the same as described under legal assignments.
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Perfecting security in real estate finance transactions—checklist This Checklist sets out the steps which property lawyers need to take to perfect security in a real estate finance transaction. Real estate finance lenders will typically want to take a full security package over all of the assets relating to the real estate. A real estate lawyer in a multi-disciplinary team will likely be responsible for arranging or inputting into the following securities and documentation: • security over the land, rental income, insurance proceeds, development and construction and contractual rights • reviewing the management agreement and negotiating a duty of care agreement (although in a multi-disciplinary team, this is sometimes handled by the banking and finance lawyer) • dealing with completion undertakings and post completion registration of the legal charge at Companies House and HM Land Registry as well as giving third party notices regarding rent payment, notice of charge where necessary of assignment of contractual rights or warranties See Practice Notes: Security in real estate finance transactions, Taking security over land...
Checklist: Assignment of claims by insolvency office-holders What claims or causes of action can be assigned? Insolvency-office holders should keep in mind the distinction between assigning an ‘office-holder claim’ (ie any statutory claim the office-holder can bring under the Insolvency Act 1986 (IA 1986)) and a claim which vests in the insolvent company (ie a ‘company claim’) or the bankrupt individual. Claims which vest in the insolvent company or the bankrupt individual The primary duty of an insolvency office-holder is to recover the property of the insolvent company or the bankrupt individual and to realise the value of that property for the benefit of creditors. See Practice Notes: • Role, powers, functions and duties of an administrator • Role, powers, functions and duties of a liquidator • Role, powers, functions and duties of a trustee in bankruptcy As choses in action fall within the definition of property capable of realisation, insolvency office-holders can assign claims which vest in an insolvent company or a bankrupt individual at the onset of the...
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This Practice Note considers the specific situations where a contract is required by law to be in writing: assignments, contracts for the sale of land, equitable mortgages, assents, transfers of shares, transfers of intellectual property rights, and guarantees.When a written contract is beneficial or a necessityContracts can be formed in one of three ways:•orally•by conduct, or•‘under hand’ (in writing)For more information on contract formation, see: Formation and interpretation—overview.Simple contracts are created in any of the above manners in ‘simple form’, whereas deeds must be executed in ‘solemn form’. See Practice Notes: Deeds and Executing documents—deeds and simple contracts.There are certain situations when a written contract is required by law or is necessary to satisfy registration requirements. Contracts are required by statute to be made or evidenced in writing for:•assignments•contracts for the sale of land (as opposed to the actual conveyance, which must be by deed)•equitable mortgages•assents•transfers of shares•transfers of intellectual property rights•guarantees‘Writing’ is defined in schedule 1 to the Interpretation Act 1978 (IA 1978) to include:‘typing, printing, lithography, photography and...
This Practice Note explains one of the key ways a lender can transfer a loan under English law to another lender by assignment.The other key ways are: •novation—see Practice Note: Transferring a loan by novation, and•sub-participation or risk–participation—see Practice Note: Selling a loan by sub-participationA loan (which is a debt) is a chose in action. A chose in action is something which is recoverable by legal action (as opposed to something which is physically possessed). As a basic principle, choses in action cannot be assigned at common law.Assignments of choses in action are therefore either:•statutory—often referred to as 'legal' assignments because they have an equivalent effect to legal assignments, or•equitableUnder English law, an assignment is a transfer of rights; it does not transfer obligations (in contrast to a novation—see Practice Note: Transferring a loan by novation).This Practice Note discusses:•requirements for a legal assignment•how legal assignments differ from equitable assignments•the advantages and disadvantages of assignments as a method of transfer, and •the approach taken to assignments in the Loan Market Association...
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Ireland—Notice of assignment of contract—from assignor [Headed notepaper of the assignor] To: [Insert name and address of recipient (ie the other party to the contract that was assigned)] [Insert date] This Precedent is a letter notice of assignment, which informs a party to a commercial contract that the other party (the assignor) has assigned all or part of its rights, title, benefit and interest in the contract to a third party (the assignee). It assumes that the commercial contract which was assigned is governed by the laws of Ireland. In the case of an assignment of contractual rights, giving the contract counterparty written notice of the assignment is one of the key requirements for the creation of a statutory assignment under section 28 of the Supreme Court of Judicature Act (Ireland) 1877 (SCJA(I) 1877 (IRL)) (ie an assignment which takes effect as a legal assignment). Section 28 of SCJA(I) 1877 (IRL) does not include any specific requirements about the form of the notice which needs to be given. This Precedent...
Bilateral debenture for a chargor incorporated as a limited company in Ireland to secure the chargor’s obligations to the lender on an all monies basis Using this Precedent Debenture This is a precedent bilateral Debenture which can be used to take security over all of the assets of a company. This drafting note explains the context in which this precedent Debenture might be used as well as the features of this precedent Debenture and the assumptions on which it is based. Negotiating a security package—general principles A lender's primary concern is that it is repaid. If a borrower fails to repay a loan the lender may have to go to court to obtain a judgment for payment of the sum owed to it. Even if it obtains such judgment this does not mean that the lender will be repaid in full or even in part. For example, if the borrower is insolvent, the lender may have to share the borrower's available assets with other creditors and will only receive part...
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If a tenant fails to complete the formalities for assigning a commercial lease to an assignee, and the assignee takes possession of the premises with the landlord’s knowledge and consent, would there be an equitable assignment of the lease? What are the formality requirements for assigning a commercial lease? There are three main formalities for assigning a lease. First, the contract for the assignment of a lease needs to be made in writing, signed, incorporating all the terms which the parties have expressly agreed in one document or, if contracts are exchanged, in each document (section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989). Second, the assignment of a lease must be made by way of a deed, even if the lease itself was created orally (section 53 of the Law of Property Act 1925; Crago v Julian. Third, if the lease being assigned is a registered lease, the assignment must be completed by registering it at HM Land Registry (section 27(1)(a) of the Land...
Person 1 is the freehold owner of Plot A and also had a lease of the neighbouring plot, Plot B. Person 1 grants a lease to Person 2 of Plots A and B. Person 1's leasehold tenure of Plot B comes to an end—Person 2 now ends up with a split reversion landlord situation, having Person 1 as landlord with control over Plot A and the original freehold owner of Plot B as its other landlord. Are the landlords jointly and severally liable for landlord covenants under the lease (which is holding over)? A split reversion (also known as a severed reversion) most commonly arises when a landlord, after granting a lease of a property, disposes of their reversionary interest in part of the property by selling part of the property to a third party. As a result of that dealing, the tenant (who remains in occupation of the whole property under the original lease) finds themselves with two landlords in respect of different parts of the property...
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Commercial analysis: in this High Court judgment concerning two cross applications for strike-out and adding a party, the primary dispute related to an unpaid debt for investment consultancy services and the assignment of the sums due. The court decided that the prohibition of assignment clauses were valid and enforceable but that the claimant’s application to join the original assigning party should proceed thereby allowing the claim to continue. Written by Alexander Whatley, barrister at 3PB Chambers.
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