9 December 2022

Shaking the foundations – Andrew Crabbie Maria Shahid and the Law Society Gazette

Head of Commercial Real Estate, Andrew Crabbie, has been extensively quoted in Maria Shahid’s latest piece, originally published by the Law Society Gazette, on how the uncertainty and fragility of the UK’s real estate market is being mitigated by a “wall of capital” from overseas.

The low down

The UK commercial property market is struggling. That is not unprecedented, but the sector’s challenges are much less straightforward than during the boom-bust economic cycles of the past. Property lawyers cite war in Ukraine, Brexit and ‘Trussonomics’ as complicating factors. Lawyers remain hopeful that after months of political turmoil, planning reforms may finally get under way, but geopolitical uncertainty and rising interest rates are twin headaches. Bargains abound for overseas buyers, as distressed assets and a weak pound present big opportunities. Or they would do if owners were not hanging on, apparently in denial about taking a ‘haircut’ on their investments.

Tumbling commercial real estate valuations and sales seem to signal a slump. But talk to commercial property lawyers at the sharp end of transactions and a more complex picture emerges. There is plenty to keep them busy, but often that is not good news for clients. The Gazette canvassed the sector’s specialists on how they are juggling the multiple challenges they face – from war and Covid to the legacy of ‘Trussonomics’.

Problems are multiplying

Crabbie commented: ‘We are only two years into a decade in which we have already experienced Brexit, Covid, the conflict in Ukraine and escalating climate change, which have accelerated political instability and economic downturn.’

Kwasi Kwateng’s notorious ‘mini-budget’ in September had a tangible impact, he adds: ‘After the chaos of “Trussonomics” and the resultant turmoil in the debt and gilt markets, it is unsurprising that major real estate investment deal activity has stalled.’

Kate Topp, partner and head of real estate at Ashfords, concurs: ‘Since the mini-budget we’ve definitely seen what I would call a slowing of transactions,’ she says. ‘I haven’t personally experienced anything becoming abortive but of course residential developers are having to take stock given the rising cost and general availability of mortgage finance.’

Boyes Turner partner Mark Appleton also points to overlapping problems for the real estate sector. ‘The property market has been hit by various factors: the war in Ukraine resulting in increased energy prices, rises in the cost of living and inflation, together with an ill-conceived mini-budget and political instability resulting in interest rate rises and a diminution in the appetite to lend on property transactions,’ he says.

Brexit effect

Can you form a clear picture of events while they are still unfolding? That is difficult, but on Brexit the challenges do not stop people from trying.

Ray Oshry, partner and head of commercial real estate at Harold Benjamin, sees little change in that respect. ‘To be honest, we haven’t noticed much impact at all from Brexit,’ he says. ‘In fact, we as a firm are busier than ever across the board. The reality is that everything in commercial property has been overshadowed by the pandemic, the war in Ukraine and the cost of living crisis, and their impact. This has had a significant impact on certain types of commercial property such as leisure and retail, and we are still experiencing the after-effects of that today.

‘If not for the Covid-19 pandemic, we may have noticed the effects of Brexit to a greater extent. It is likely we will feel some of the effects in the years to come, but it’s currently still a case of let’s wait and see.’

There is a more immediate effect on development work, notes Stephen Hedley, partner and head of real estate at Cripps. ‘The main impacts post-Brexit are supply-chain delays and cost pressures on development projects coupled with labour and skills shortages,’ he explains. ‘The pandemic and other global events compounded these issues and challenges remain, and in many instances are more acute. The significant impact on construction projects continues.’

Irwin Mitchell’s national head of real estate Adrian Barlow also highlights post-Brexit construction challenges. ‘The shortage of materials and labour remains an issue for our developer clients that has been exacerbated by Brexit,’ he says. ‘Developers are looking for flexibility with construction timescales in contracts and the ability to reduce prices to take into account rising construction costs. Interest in advice on drafting contracts has therefore never been higher.’

Topp confirms this: ‘Unfortunately, the availability and cost of mortgages is not the only challenge – the rising price of materials and issues in the planning system continue to impact on all developers, but particularly the SMEs.’

What about commercial tenants’ response to Brexit? Barlow says: ‘We have also found that tenants are looking for more flexibility in response to the rising cost of doing business. The “regearing” of leases to introduce breaks and rent concessions is particularly common – again bread and butter income for property lawyers.’

Post-pandemic bubble has burst

Hedley says: ‘For the wider commercial real estate teams the post-pandemic investment bubble has burst.’ Global and political events have led to a slowdown in these transactions. ‘Although we are still seeing healthy levels of interest in UK property from inward investors from the Middle East, far east and elsewhere in Europe… it’s clear some are holding back in anticipation of further price corrections.’

‘Covid has resulted in poor occupancy rates – about half of the pre-Covid rates,’ Boyes Turner partner Mark Appleton notes. This has led to surplus space which owners and occupiers are trying to sell or let. ‘As a result, investors have sought to take money out of property funds and place it elsewhere. Such funds may be forced to sell assets under value to plug a financial hole.’ It is reported, he notes, that Landsec accepted £809m from Lendlease for the Deutsche Bank building on Moorfields, London, compared with the original price of £1bn. ‘Things do not bode well when the UK property market made its worst ever return [in October],’ he adds.

Covid’s cottage industry

Irwin Mitchell’s Adrian Barlow says dispute resolution remains ‘extremely busy’. He explains: ‘On the disputes side, the statutory moratorium on enforcement action by landlords for commercial rent arrears built up when businesses were forced to close due to the Covid pandemic ended on 23 September. This led to significantly increased instructions from landlords looking for advice on their options to forfeit (terminate) leases for non-payment of previously “protected” arrears and pursue payment through various methods.’

Cripps’ Stephen Hedley says: ‘The pandemic created its own Covid-specific cottage industry for dispute resolution lawyers. There was the emergency legislation restricting landlord enforcement, the developing body of case law relating to the liability to pay rent during lockdowns, and the post-lockdown Covid arbitration scheme. These matters are concluding and Covid-specific litigation will likely soon be a thing of the past.’

Barlow says: ‘Looking forward, current economic conditions suggest more work for investors with defaulting tenants, for tenants looking to reduce their rent or get out of leases, and for the parties affected by delayed or aborted development or investment projects.’

Buyers and sellers: two worldviews

‘From a land-acquisition perspective,’ Topp says, ‘there definitely isn’t the same pre-Christmas rush from a purchasing developer’s point of view to get deals over the line, rather a desire to keep things moving; but see how things pan out in the new year.’

Crabbie highlights the problems arising when buyers and sellers have misaligned expectations – understandable in a market in flux. ‘The big challenge is pricing,’ he says, ‘and the disparity between expectations on both the sellers’ side, who are naturally reluctant to be pushed into a fire sale, and the buyers’ side who are eager to identify so-called distressed assets and scoop a bargain. It is difficult to predict with any degree of certainty where pricing corrections will eventually land but, depending on the sector, values may be down 10-20% from 12 months ago.’

Will sellers accept the ‘haircut’? Robin Grove, divisional managing partner of construction, real estate and disputes at Charles Russell Speechlys, says: ‘The weight of largely private capital seeking opportunities to invest means there will be a transactional market in real estate assets, once assets have been revalued. Those needing to refinance or exit to create liquidity recognise that revaluation to the “new normal” is needed and will do so more quickly than previously.’ Therefore, he says: ‘We expect the transactional market to reboot in early 2023, not least as overseas private capital seeks to take advantage of the weak pound.’

Hedley says: ‘On the occupier side and day-to-day asset management, we see resilience with no significant downturn. This includes office occupiers as we continue to see strong demand for high-grade offices within particular locations. [In London], there is also strong demand from high-end retailers in high-end residential areas such as Chelsea and Shoreditch, but not in traditional locations such as Regent Street.’

Borrowing costs and inflation

Crabbie says the ‘real gamechangers are interest and gilt rates which are driving uncertainty. Interest rates are likely to continue to rise into the early part of next year, and I would expect them to plateau around the second quarter’.

Prices are falling. ‘On one hand we have seen a reduction in property transactions, particularly due to higher borrowing costs, rampant inflation and soaring energy costs resulting in businesses generally having less disposable income for investment,’ Barlow says. ‘Clients are in some cases battening down the hatches and preparing for the impending recession… all of these factors have reduced the demand for commercial property, causing property prices to fall and clients seeking to withdraw from deals or looking to “chip” the price on property acquisitions.’

Conversely, Barlow says, ‘many clients are seeing excellent opportunities. Some businesses are under pressure to dispose of assets due to property corrections in the market. Cash-rich clients that have the money and appetite, and that can move quickly, are therefore identifying opportunities’.

Some developer clients are hanging on to sites until development costs make ‘building out’ more viable. ‘But, in the meantime,’ Barlow says, ‘they are getting income by leasing to tenants in the leisure and agricultural sectors, with breaks that enable them to regain the site when the time is right. Similarly, in the retail sector landlords are starting to rent vacant units for temporary “meanwhile uses” such as arts and creative centres, and in some cases looking to benefit from permitted development rights and converting properties from retail to residential use. We are able to advise on all such activity.’

Attractive assets

There remains a considerable ‘wall of capital particularly from overseas… waiting to be deployed in real estate’, Crabbie says. Such investors are, he adds, ‘benefiting from the weakness of the pound. I think we will see the return of good old-fashioned real estate asset management to create value enhancement as opposed to relying on a low-interest-rate regime. The fundamental of right location with strong tenant demand’.

In an inflationary environment, Crabbie says: ‘Rented residential, hotels and student accommodation will be attractive sectors. With the fundamentals of logistics remaining strong, retail undergoing something of a transformation and offices being at the forefront of the drive to decarbonisation and sustainability, new investor opportunities should arise.’

He remains ‘cautiously optimistic about the overall prospects for 2023 and that real estate will retain the resilience which has been its hallmark over my 30-year career’.

Clients are, Hedley notes, affected differently: ‘Where we see most activity is with clients not exposed to high debt costs.’ Activity, he says, has primarily been industrial and non-fashion retail parks. ‘Mixed-use development in major conurbations appears for now to be holding up. Lack of debt and interest rates seem to be a key issue, alongside price uncertainty. There is also still an element of political uncertainty making investors cautious.’

Jennifer Chappell, real estate counsel at BDB Pitmans, also notes that ‘the outlook for industrial sites, such as warehouses and life science labs, still remains incredibly strong.’

Cash is king

What next? Hedley says: ‘Higher interest rates and an economic downturn will inevitably see a greater focus on cashflow. For landlords this means measures to ensure rents are received. There will be an upturn in insolvency-based advice, whether in connection with CVAs, administrations or liquidations.’ Property-related professional negligence claims, he says, ‘will likely see an upturn, as is often the case in an economic downturn’.

Appleton says: ‘A nervous property market is unhealthy. These factors could easily lead to a downward spiral and ultimately a property recession unless overseas investors and wealthy funds bolster the market. Experts seem to think that any property crisis will not be as bad as the 2008 recession.’

However, he adds: ‘In the near future, there is bound to be a period of increased interest rates, a lack of demand until the economy gets back on its feet and property price readjustments.’

Topp sees a role for the state in improving the market. The planning system in particular, she says, ‘requires a good deal more investment and an increase in the number of experienced planning officers if the government is going to make any significant inroads into its new homes delivery target’.

Ending on a positive note, Grove says: ‘The office market remains an essential sector despite the changing accommodation requirements after Covid, and quality, including sustainability, is becoming ever more critical to protect asset value. Integrated teams of transactional and dispute lawyers close to their opportunistic clients will find their teams remain busy in 2023.’

This article was originally published by The Law Society Gazette on 2 December 2022 and can also be read here.

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