assignment by way of security construction

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Bulletins | January 30, 2018

Assignment by way of security – beware of giving away more than you bargained for.

Construction

Assignment by way of security is a concept that comes up on many construction projects; typically as a condition of providing finance a funder will require an assignment by way of security of key construction documents, including building contracts and appointments, with the intention that if the borrower defaults on the loan, the assignment will be perfected and the funder will be entitled to enforce its rights under the constructions documents. How and when exactly such assignment takes place and the interplay with an employer’s rights under its contracts on a project was brought into focus in last year’s case of Mailbox (Birmingham) Limited v Galliford Try Construction Limited ([2017] EWHC 67 (TCC)).

Mailbox (Birmingham) Limited (“Mailbox”), the claimant special purpose vehicle set up to develop the Mailbox in Birmingham (“the Property”), a high-end mixed used development, boasting a Harvey Nichols and the base for BBC Birmingham, engaged Galliford Try Construction Limited (“Galliford”) for refurbishment works at the Property under a building contract dated 23 December 2013. A dispute arose between the parties regarding responsibility for delay, the final account, liquidated damages and Mailbox’s termination which was referred to adjudication, where Galliford were ordered to pay Mailbox £2,477,152.86 plus 75% of the adjudicator’s costs. Galliford did not pay the sums ordered, so Mailbox sought enforcement of the adjudicator’s decision in the High Court.

Did Mailbox have a right to bring an adjudication?

Galliford’s primary defence to the enforcement was that Mailbox had no right to bring the claim, as it had assigned the benefit of the building contract with Galliford to Aareal Bank AG Wiesbaden (“Aareal”) in accordance with the requirements of a debenture dated 10 May 2011. Mailbox raised three defences:

• The building contract was not in existence at the time of the assignment referred to in the debenture. Therefore there could be no assignment;
• Alternatively, any assignment was by way of charge rather than a legal assignment; or
• The contract had been re-assigned from Aareal to Mailbox before Mailbox commenced adjudication proceedings.

Mailbox failed on the first two defences, but won on the third so was able to enforce the adjudicator’s award. However, it was the analysis of the first and second defences and Mrs Justice O’Farrell’s review of the requirements for legal assignment under Section 138 of the Law of Property Act 1925 that are of particular note.

It was held that the wording of the debenture covered future contracts, including the building contract in question. The wording “each chargor with full title guarantee assigns absolutely by way of security in favour of the security trustee” amounted to a full legal assignment rather than an assignment by way of charge and/or a conditional assignment. Further, there was a requirement for notice of the assignment to be served and specific reference to rights being re-assigned, both of which were more akin to an absolute assignment. Express notice was given to Galliford, again consistent with an absolute assignment.  Thankfully for Mailbox, on the day it commenced the adjudication, Aareal had re-assigned the rights under the building contract to Mailbox. If it had not done so, or done so after the adjudication had been commenced, Mailbox would not have been entitled to commence the adjudication.

Practical Tips

When obtaining finance for a project it is crucial to understand what the funder really requires in relation to security over construction documents. If all rights are assigned, the employer no longer has the ability to enforce such rights and may have given away more than he bargained for.

It may be that the use of collateral warranties or third party rights together with a charge will suffice but if not (which is unfortunately still the common position), it is important that any such rights are re-assigned before the employer commences an adjudication or any other proceedings.

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Why assignment provisions in construction contracts can make all the difference to lenders

Contributors

Sarah Wales-Canning

Assignment provisions are often found in construction contracts, including collateral warranties, and they are used to transfer the benefit of a construction contract from one party to another. When providing development and real estate finance, there are a number of issues lenders need to consider in relation to assignment of construction documents as part of their overall security package.

Benefits for a lender

If the benefit of a construction contract is assigned from a borrower to a lender, the obligations of the contractor or consultant are then owed to the lender and the lender can demand performance of the contractor's or consultant's obligations under those contracts. Assignment also allows the lender to enforce the terms of the relevant contract or pursue a claim against the contractor or consultant where they are in breach.

The lender may have the benefit of collateral warranties which creates a contractual link between the lender and the contractor or consultants. However, these will not usually enable the lender to enforce the terms of the underlying contract unless the lender formally "steps-in" and uses express rights and meets express conditions in the collateral warranties.

Assignment therefore makes enforcement more streamlined.

Legal assignment versus equitable assignment

The law recognises two different types of assignment – legal or equitable.

A legal assignment must be in writing, absolute and notice must be given to the other parties. An equitable assignment is not subject to the same requirements.

The main difference between the two types of assignment is that an equitable assignee (who benefits from the assignment) must join the assignor (the person who assigns their right) in any action against the contractor or consultant. A legal assignee can bring an action themselves.

In practice, equitable assignment is often preferred by lenders as it can be achieved in the debenture or facility agreement without the need for a separate deed of assignment and notices to the contractor or consultant. It also allows the borrower to retain the benefit of the construction documents so that they can continue to have the right to enforce the terms.

Charge versus security

Where a lender takes a charge over a contract, this gives the lender a right over the benefit of the contract instead of assigning it the benefit of the contract.

If the benefit of a contract is assigned by way of security, the benefit is transferred to the lender. On redemption of the loan, the lender will need to re-assign the benefit of the contract back to the borrower. This can be problematic where there is a limit on the number of permitted assignments and no carve out for assignment in this manner.

Further considerations

Where a contract contains an express assignment provision, common issues include:

• Assignment being restricted to absolute legal assignment, which means that equitable assignments are not permitted, including granting a charge
• Limits on the number of permitted assignments, which could have been wholly or partly used up already
• No carve out for assignments by way of security and reassignment on redemption which means that both assignments will count towards the permitted number, and will often use them up entirely.

It's important for lenders to understand what assignment options are available for construction contracts and assess whether they allow for sufficient security.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.

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A recap of development finance and assignment of construction documents

The assignment of construction documents is often an important part of any development finance transaction. 

Ross Galbraith and Pippa Garden , both in our construction team, alongside Georgia Sproat , from banking and finance, explore the most common types of assignment used on such transactions and revisit the key Mailbox case from 2018.   

What is an assignment?

An assignment is the transfer of a right from one party to another. In construction, the right transferred may be one or both of the following:

• The benefit of a contract, transferred from an original party to the contract to another person, who was not a party to the contract; or
• A right to bring proceedings, whether in court, by arbitration or by adjudication. In this article, we will focus on the assignment of construction contracts from one party to another in the development finance context. 

Why assign?

As a condition precedent of providing any finance to a developer, funders will typically require either collateral warranties from the main contractor, consultants and sub-contractors or an assignment of any existing collateral warranties from the same parties (which is more relevant when there is a refinance involving an existing funder who already has warranties in its favour). 

A funder may also take a security assignment or an assignment by way of a charge of key construction documents (such as building contracts and consultant appointments). 

These are usually expressed to be absolute assignments, subject to a proviso for reassignment on full discharge of the secured liabilities.

Both types of assignment will allow the funder to potentially enforce their rights under the relevant warranty and/or construction documents, should the borrower default on the loan. 

The type of assignment will determine whether the funder holds a “legal” or “equitable” assignment. The key differences between legal and equitable assignments are that legal assignments provide greater protection and allow the funder to enforce specific rights in the contract and bring proceedings in its own name against the relevant party.

Legal or Equitable Assignment?

Legal assignment .

A legal assignment is a formal transfer of rights. To be considered a legal assignment, section 136(1) of the Law of Property Act 1925 (‘LPA 1925’) must be complied with. This requires the assignment to: 

• Be in writing;
• Be absolute;
• Not purport to be by way of charge only; and
• Expressly and formally notify the debtor of the original party.

A legal assignment confers greater legal protection as, once the rights are assigned, the assignee can enforce them directly without needing the participation or permission of the original party. 

No particular form of notice is required for a legal assignment, as long as it is clear that there has been an assignment. 

Where a funder requires a legal assignment, the assignment document will usually contain a form of notice and acknowledgement and a requirement for the borrower to serve notice on counterparties to the contracts being assigned in order to perfect the assignment.

When a funder is assigned the benefit of a collateral warranty, this will generally be a legal assignment and the funder will directly be able to enforce its rights against the relevant contractor, consultant and/or sub-contractor. 

Equitable Assignment 

Where the formalities required under s136(1) LPA 1925 are not met, but there is still an intention to transfer some or all of the rights, the assignment will usually have an equitable effect. 

Unlike a legal assignment, an equitable assignment is not required to be in writing, notice to the debtor is recommended but not mandatory and partial rights can be assigned. 

An equitable assignment provides fewer legal protections than a legal assignment, as the assignee may need the assignor to join in any legal action to enforce the rights.

Despite its weaker legal status, an equitable assignment is still enforceable through the courts. 

When the funder takes a security assignment or an assignment by way of a charge of key construction documents (such as building contracts and consultant appointments) a lender will typically seek to ensure this is a legal assignment. 

However, in some circumstances, a lender may accept an equitable assignment – for example, only serving notice of the assignment if there is an event of default at a later stage but this comes with some risks of not perfecting the assignment at the outset

Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd

The Mailbox case was a key case in determining the differences between both legal and equitable assignments and the dangers of when an intended equitable assignment actually results in a full legal assignment. 

Galliford Try Construction, the defendant contractor, had agreed to refurbish a mixed-use retail and office space in Birmingham. The contractor, and the claimant employer, Mailbox (Birmingham) Ltd, entered into an amended JCT Design and Build Contract. 

Most of the work on the project was already carried out but, on 1 March 2016, Mailbox (Birmingham) sought to terminate the contractor’s contract.

A dispute then arose between the parties as to who was responsible for the delay, liability for liquidated damages, the proper valuation of the final account and whether Mailbox (Birmingham)’s decision to terminate Galliford Try Construction’s contract was lawful. 

On 19 August 2016, Mailbox commenced adjudication proceedings. 

Following the adjudicator’s decision to award liquidated damages and interest, Galliford Try Construction sought to challenge Mailbox (Birmingham) on the basis that they were not entitled to commence the adjudication proceedings in their own name as they had assigned the benefits of the building contract to Aareal Bank. 

Mailbox (Birmingham) tried to argue that whilst there may have been a charge in favour of Aareal Bank, there was no assignment and, even if there had been an assignment, there was a re-assignment to Mailbox (Birmingham) on or before the notice of adjudication. 

The Technology and Construction Court (TCC) had to decide whether initially, there had been an assignment or charge in favour of the funder and, if there had been an assignment, whether a valid reassignment had taken place so that Mailbox (Birmingham) could bring proceedings in their name. 

The TCC reviewed the language used in the assignment document and in the notice given to the defendant. They held that the initial assignment to Aareal Bank was an equitable assignment, and that the re-assignment was also valid and, importantly, had taken place before Mailbox (Birmingham) sought to commence adjudication proceedings. 

Ultimately, Mailbox (Birmingham) proved that it had the right to bring proceedings in its own name and that the adjudicator had jurisdiction to determine the dispute. As a result, the adjudicator’s decision was upheld. 

From a practical perspective, the Mailbox case serves as an important reminder to check and evidence the date of any assignment or re-assignment. 

In this case, the court made it clear that the adjudicator’s decision would not have been deemed enforceable had the re-assignment to Mailbox (Birmingham) taken place after the notice of adjudication. 

Similarly, the adjudicator’s comments in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd highlight that to ensure a legal assignment is not created unintentionally, it is important to understand a funder's requirements and, specifically, what type of and how the assignment is being created. 

Practical takeaways

• Understand what security the funder requires from a construction perspective – does the funder require a full legal assignment of any collateral warranties? Does the funder require a security assignment or an assignment by way of a charge over any of the construction documents?
• Check whether you are able to take an assignment of the relevant warranty and/or construction document. For example, the standard form JCT contracts do not allow for assignment without the contractor's consent. 
• From a borrower’s perspective, be careful not to give away more than you intend to - if you are assigning all of the benefits via a legal assignment, be aware that you may no longer have the ability to enforce the rights under the contract. On redemption of any loans be sure to document the re-assignment of any rights.
• As a borrower negotiating an assignment, be cautious of funders requiring you to procure an acknowledgement to a notice of assignment – this should be limited to (at the most) using best endeavours to do so and preferably reasonable endeavours, given you cannot force a third party to acknowledge a notice. 
• When drafting any debenture or assignment document, ensure clear wording is used to distinguish between an absolute legal assignment and a security assignment, with a right to re-assignment on settlement of the debt. 
• If you are a funder, ensure your security is perfected by requiring borrowers to serve notice on counterparties to an assigned contract and registering the assignment at Companies House within the 21-day limitation period.

For more information about the assignment of construction documents, or if you have any questions about construction law in general, please contact Ross Galbraith using [email protected] or 0191 211 7999 . 

For any queries about security and development funding please contact Georgia Sproat using [email protected] or 0191 211 7866 .

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Construction A-Z: Assignment

The first instalment of A-Z Construction, a fortnightly series to help you better understand construction contract negotiation and dispute resolution.

By Estelle Boullet - Paralegal

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To celebrate the new year, our construction team is pleased to announce the launch of LA’s A-Z Construction. Every two weeks, the team will share their thoughts on various topics relevant to the construction industry in a blog. We hope that those unfamiliar with certain legal terms will use this A-Z as a reference to better understand construction contract negotiation and dispute resolution. Our first instalment looks at assignment.

Definition – What is an assignment?

To put it simply, an assignment is the transfer of a right from one party to another. In a construction context, the rights assigned primarily relate to the transfer of the benefit or interest – not the burden – under a construction document for a project, such as a building contract, consultant appointment and collateral warranty, from an assignor to an assignee. 

For example, if an employer enters into a building contract with a contractor, the employer (assignor) may transfer its benefit under that contract to a funder (assignee) during the construction of the project or to a subsequent purchaser (assignee) of the completed development, or by way of an assignment.

Unless the assignment agreement provides otherwise, an assignment will normally include both accrued and future rights. 

How can I assign a construction document?

Subject to meeting certain formalities, an assignor can unilaterally and freely assign legal rights either:

• In writing;

Parties wishing to opt for this method of assignment will normally enter into an assignment agreement or deed of assignment.

• By equitable assignment: if an assignment does not comply with Section 136 of the LPA 1925 , then it will be an equitable assignment. For instance, an equitable assignment does not need to be in writing, and a notice to the obligor (party to the contract performing the obligations) is not required, although recommended.

Where there is a legal assignment, the assignee is able to bring any action against the obligor in its own name. In contrast, under an equitable assignment, the assignee must join the assignor as a party to any action. An assignee will generally prefer to opt for a legal assignment as it gives greater certainty.

Difference between assignment and novation

An assignment only allows the assignor to transfer the benefit (rights) of a construction contract from one party to another, whereas novation allows the parties to transfer the benefit and the burden (obligations) of the contract.

Assignment in construction contracts 

It is not uncommon to find express provisions dealing with assignment in construction contracts. Such provisions are primarily designed to restrict a party’s ability to assign, without which rights under such contracts would generally be freely assignable to anyone, unlimited in person or frequency, and without the consent of the obligor being required. 

For example, it is often proposed that assignments are limited to two without the consent of the obligor, with free assignments to funders and/or group companies.

Assignment by way of security 

Assignment by way of security is a concept that comes up on many construction projects, typically as a condition of providing finance: a funder will require an assignment by way of security of key construction documents, including building contracts and appointments, with the intention that if the borrower defaults on the loan, the assignment will be perfected and the funder will be entitled to enforce its rights under the constructions documents. It is important to check if the assignment is by way of a charge by a legal assignment.

Tip – Be careful with assignment provisions!

Do not assume that there is an automatic right to assign in a contract. Unamended JCT Contracts provide that assignment is only possible with the other party’s agreement. This is rarely forthcoming. Check the contract or appointment.

When obtaining finance for a project, it is crucial to understand what the funder really requires in relation to security over construction documents. If all rights are assigned, the employer no longer has the ability to enforce such rights and may have given away more than he bargained for.

It may be that the use of collateral warranties or third-party rights together with a charge will suffice, but if not (which is unfortunately still the common position), it is important that any such rights are re-assigned before the employer commences an adjudication or any other proceedings.

It is important to review and consider the implications of the requirements included in an assignment clause. For example, if you are a contractor or consultant, you may want to limit the employer’s right to assign without your consent. If you are an employer, you may want to include the right to freely assign your contract to any group companies and/or funders.

Please get in touch with our construction team if you would like some advice on suitable assignment clauses in your construction contract email [email protected] or call  023 8082 7502 .

Estelle Boullet - Paralegal

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Construction security for funders

Our construction team explores what sort of security banks typically require when providing finance in connection with a construction project.

Construction security

A bank or other similar funder providing finance in relation to a construction project will want to be comfortable that their position is properly protected should the employer (the borrower) get into financial difficulties and find itself unable to complete the project. There will most likely be a lengthy facility agreement in place between the funder and employer describing in detail what constitutes a default by the employer of the funding arrangements. In the event of a default, the funder may want to enforce its security and, as part of this, will want the option of being able to step into the shoes of the employer and complete the project, or employ someone else to do so on its behalf. This option is commonly referred to as a “step in right”.

As with a purchaser or a tenant of a newly build commercial property, the funder will not have been a party to the construction contracts, such as a building contract and the professional appointments, entered into between the employer and the construction team members and will therefore need some other contractual connection with these parties to step-in to the construction contracts or otherwise enforce them.

Security assignment of contractual rights

As a condition to providing finance, the funder may require assignment by way of security of the key construction contracts. Under an assignment, the employer transfers its rights under the construction contracts to the funder. The employer will usually be required to sign notices of assignment when the security is given but the notices may not be served on the contractor/consultants immediately. This means the employer may still enforce its rights under the contracts until the notices are served but also means that if the funder has to take over enforcement of the contracts later on (i.e. if and when it enforces its security) the paperwork is already prepared.

Collateral warranties

A funder may also insist on collateral warranties from the main construction team members, such as the contractor, consultants and subcontractors.  

A collateral warranty stands alongside the primary contract, such as the building contract, professional appointment or subcontract, and creates a contractual connection between the funder and the party employed under the primary contract. Under the collateral warranty, the funder has the ability to enforce certain rights under the primary contract against the contractor/consultant/subcontractor (as the case may be).

Typically, a funder collateral warranty will provide the funder with step-in rights, allowing the funder to take the place of the employer under the primary contract in the event of a breach by the employer.

As an alternative to a collateral warranty, the funder might be granted third party rights under the construction contracts. These operate in a similar way to a collateral warranty and allow the funder to enforce certain terms of the relevant construction contract. The third party rights are most commonly set out in a schedule to the construction contract and the construction contract will expressly state that the rights contained in the schedule can be enforced by the third party.

What type of construction security is appropriate?

There are a number of factors a funder will take into consideration when it consider what type of construction security to put in place when providing finance under a project. Typically these factors include the following:

• the relationship between the funder and the employer;
• the financial stability of the employer and main contractor; and
• the size and complexity of the project.

It is common for funders to err on the side of caution and take a belt and braces approach to construction security (for example by taking both collateral warranties (or third party rights) AND a security assignment of the building contract to ensure that it is properly protected in all eventualities.

Please contact Cathrine Ripley in FSP’s construction team if we can help with any of the topics in this note.

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Assignments by way of security

Published by a lexisnexis banking & finance expert.

Assignments by way of security can take different forms and it is important to understand how they are created and their effect. Security over choses in action such as debts and other contractual rights is often taken by way of an equitable or statutory assignment by way of security.

This Practice Note explains:

what assignments by way of security are

which types of assets they are used for

whether they take legal, statutory or equitable form and the advantages of the statutory form

why it is important to serve notice of an assignment by way of security

What is an assignment by way of security?

Assignments by way of security are a type of mortgage. They involve:

an assignment (ie transfer) of rights by the Assignor to the assignee

subject to:

an obligation to reassign those rights back to the assignor upon the discharge of the obligations which have been secured

When the obligations that have been secured have been discharged, the assigned rights have

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Related legal acts:

• Law of Property Act 1925 (1925 c 20)
• Small Business, Enterprise and Employment Act 2015 (2015 c 26)

Key definition:

Assignor definition, what does assignor mean.

The entity disposing of an asset by an assignment .

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