HENRY’S BREXIT

Despite every age believing their experiences and challenges to be unique the old adage ‘history repeats itself’ has an impressive track record of proving itself right. Wind back less than 600 years to a previous Brexit. King Henry VIII, having rejected the Pope’s request to invade France became exasperated by Rome’s increasingly authoritarian meddling in British politics under the cloak of religion. Henry’s Brexit was the Reformation, often considered entirely theological, but, in reality a reaction to the increasingly political role of Rome in Europe. The similarity of yesterdays Rome to today’s Brussels is inescapable. If someone had not coined the word ‘Brexit’ ‘Secular Reformation’ would be an apt description.

I don’t think anyone should have been surprised at the outcome of the referendum. The structure of the EU is based upon acceptance of authoritarian rule packaged to look like democracy. Remember, several of the major member countries continued to spawn home grown dictators in living memory.. Names such as Franco, Hitler and Mussolini come to mind. So characteristic resentment, by Brussels, of our distinct heritage made our departure inevitable.

I know all this seems far removed from property but if you will bear with me we will get there. One of the major attractions of Britain in the eyes of the world is our reputation for stability. This has been responsible for countless large and small businesses choosing to set up here. In the increasingly fractious political and economic atmosphere in mainland Europe and continued uncertainty globally Britain’s stability will be an enormous help in countering any punitive reprisals that the EU may seek to impose on us. That stability must be cherished. We cannot afford to allow strikes to disrupt the basic functions of life. There is clear evidence that many strikes are motivated by ideology rather than work related grievances. If we are to distinguish ourselves as the destination of choice for research, development, manufacturing and finance the uninterrupted provision of basic services is a must. But how can anyone expect members of key services such as communications, transport, health, energy and all public services to relinquish the right to strike?

Well, maybe, the property sector holds the answer. Relations between landlords and their tenants are not always ‘sweetness and light’ but one rarely hears of a landlord changing the locks in the night. Landlords and tenants tied into a relationship by a 15 year lease rarely agree on the appropriate 5 yearly increase in rent but neither party throws their toys out of the pram or campaigns for all commercial property to be nationalised. They have a lease (a contract by another name) which includes a mechanism for settling any matters that cannot be sorted between them. It is called an arbitration clause and the fundamental point is that the two parties have legally accepted that if they could not resolve any dispute directly they would abide by an arbitrator’s decision.

I have presided at a number of arbitrations and also represented both landlords and tenants at others. They mostly concern rent but some are about repairs, user restrictions or sub-letting. Both sides are entitled to submit evidence and challenge that of the other party. They can do this directly or through their own professional advisors. The arbitrator is independent and must make his decision based solely on the evidence put forward. The arbitrator’s decision, called an ‘Award’, is final and non acceptance carries the same penalties as defying a High Court order.

The certainty of a binding conclusion is the key to property arbitration. Contrast this to ACAS which is a toothless talking shop.

© January 2017