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The good, the bad and the ugly

The Olympics, the recession and the Eurozone – 2012 could be a very mixed bag for the property sector. Our Real Estate Department takes a look at the year ahead and provides some pointers on 10 legal developments that we expect to impact on the property industry. Click on each heading for more detail.

1. Introducing an SDLT anti-avoidance rule

Political momentum is gathering for the introduction of a Stamp Duty Land Tax (SDLT) anti-avoidance rule to stop the sale and purchase of non-UK incorporated companies without incurring any SDLT or stamp duty charge. HMRC had previously consulted on introducing such a rule in the residential sector, before shelving it a few years ago. The rule, expected in this year's Budget in March, is likely to tax the sale of "land-rich" vehicles at the higher rates of SDLT – but as always the devil will be in the detail. Whether the rule is confined to residential property only will also be significant. This will be a fairly seismic development if it actually happens…

2. Consulting on rights of light

In early 2012, the Law Commission will commence an investigation into the current law on rights of light, with a consultation paper to be published in early 2013. It will investigate whether the law by which rights of light are acquired and enforced provides an appropriate balance between the important interests of landowners and the need to facilitate the appropriate development of land. It will examine the interrelationship with the planning system, and it will examine whether the remedies available to the courts are reasonable, sufficient and proportionate.

3. Figuring out the Localism Act

A number of provisions under the Localism Act 2011 come into force this year. These are largely aimed at empowering local communities, for example, by giving communities the right to nominate land as an asset of community value and later bid for that land if it is put up for sale. This could delay many property transactions.

4. Introducing the Community Infrastructure Levy

The Community Infrastructure Levy (CIL) was originally introduced under the Planning Act 2008. The recent Localism Act 2011 has made reforms to the CIL regime. We are now seeing local authorities introducing charging schedules. Newark and Sherward District Council introduced theirs in December 2011 and other authorities are close behind – including the Mayor of London who is due to introduce a charging schedule on 1 April. We do not think that CIL will see the end of section 106 agreements, but rather a new type of agreement focussing on financial contributions and non-financial obligations which the authority do not recover under CIL.

5. Promoting energy efficiency: the Energy Act, the Green Deal and EPCs

The Energy Act 2011 will compel landlords to achieve and maintain a required level of energy efficiency for commercial buildings and those subject to assured shorthold and regulated tenancies. If a property's Energy Performance Certificate (EPC) shows a poor energy rating it will be unlawful to let the property. Regulations later this year will specify which properties are affected and the time limits – 2018 is the longstop date. The Green Deal will enable energy efficiency improvements using finance from accredited providers and paid for in instalments through the energy bills.

Sellers often do not provide an EPC until exchange of contracts. However, the Government is introducing a rule from 6 April 2012 that sellers will use all reasonable efforts to ensure that an EPC is obtained within seven days of marketing the building and that this must be attached to any written particulars. This will apply to residential and commercial properties. If an air-conditioning inspection report is required, this will need to be lodged onto the central EPC register.

6. Improving the REITs regime

Draft legislation aims to "improve" the REIT regime by reducing barriers to entry for conversion while allowing the same tax treatment as direct property ownership. As previously announced, the REIT listing requirement will be relaxed (that is, trading platforms such as AIM will be sufficient); rules relating to investors not being "close" will be relaxed, allowing certain institutional investors to be investors in REITs; and, significantly, the conversion charge which applies when a company becomes a REIT will be abolished. The rules removing the barriers to REITs will have effect from the date of Royal Assent of Finance Bill 2012, with the remainder of the changes coming into force after this date.

7. Criminalising residential squatting

The Government has recommended the criminalisation of squatting in residential properties. The offence will not catch legitimate tenants, lodgers or occupiers, who originally occupied with permission but subsequently had a disagreement with the landlord and refused to leave. Neither will it catch gypsy and traveller encampments on land ancillary to residential buildings. Watch this space for possible draft legislation later this year.

8. Streamlining the law on Carbon Reduction Commitments

The Carbon Reduction Commitment (CRC) Energy Efficiency Scheme is a mandatory emissions trading scheme for large non-energy intensive organisations in the private and public sectors in the UK. There will be a consultation from February to April 2012 on draft legislation to simplify the qualification process and rules on organisational structures, and other proposed changes. The Government will publish responses to the consultation on draft legislation in September 2012. Amended CRC legislation should come into force in April 2013.

9. Simplifying the EU procurement process

The European Commission has recently published proposals for changes to be made to the existing EU public procurement regulations. These regulations govern the purchasing by public sector bodies and certain utility sector bodies of contracts for goods or works or services, including property management and development. The changes aim to modernise the existing regime by introducing more simplicity and flexibility, and shorten the time limits for participation and submission of offers. Legislation is expected by the end of 2012, with new EU Directives binding EU member states by 30 June 2014.

10. Electricity and gas recharging to tenants

From the beginning of 2012, under the Electricity and Gas (Internal Markets) Regulations 2011, landlords of multi-let buildings and managing agents may be obliged to let their tenants buy energy from a different energy supplier if there is a "distribution network". The cost of changing or adding cabling and infrastructure will be the tenant's liability so this may deter most tenants. Once a tenant makes a request, the landlord has 10 days in which to object if it is considered to be unfeasible.