Independent Assessor process during the COVID-19 emergency
Published 24 April 2020
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This publication is available at https://www.gov.uk/government/publications/independent-assessor-process-during-the-covid-19-emergency/independent-assessor-process-during-the-covid-19-emergency
This information is only relevant to a tied pub tenant (TPT) who has already received a MRO proposal from their pub-owning business (POB) and its terms have been agreed or determined. The Independent Assessor (IA) process is the means by which a Market Rent Only (MRO) rent is then to be determined, where it cannot be agreed.
The Pubs Code Adjudicator (PCA) has helped put in place a Declaration by all POBs about managing many Pubs Code processes during the COVID-19 emergency, but it does not apply to the IA process.
1. Will the IA determine the market rent for my pub?
The Royal Institution of Chartered Surveyors has issued guidance for surveyors (including IAs) operating during the COVID-19 situation.
An IA who has been appointed in a case is equipped to use their professional judgement to decide if and how a determination of the market rent within the Pubs Code requirements can be made.
2. Does it matter if it isn’t possible to inspect the pub during lockdown?
Though the PCA’s published guidance here says that an IA would normally be expected to undertake at least one inspection of the premises before determining the market rent, this is not an absolute requirement. The IA will be able to make a judgement whether it is appropriate to determine a market rent based on, for example, an external inspection or a ‘desktop’ opinion formed using records, plans, photographs, video or other data.
3. What is the PCA’s role?
The IA process is linear and operates in the main directly between the POB, the TPT and the IA, though a referral to the PCA can be made where the POB or TPT consider that:
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the rent determined is not the market rent or the IA has failed to comply with the duty to have regard to the documents provided by the parties (known as the Schedule 3 documents) or to conduct the valuation in accordance with the PCA guidance; or
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the IA has not communicated the determination of the market rent within the time period required.
If such a dispute is referred, the PCA would if applicable and appropriate consider any request for a stay (to keep the proceedings on hold), and any suitable new timetable for the IA determination to take place.