Legal News

Unsdorfer v Octagon Overseas Ltd and others [2024] UKUT 59 ( LC) What are the practical implications of this case? This ruling clarifies who can be an accountable person and, in turn, who ultimately carries responsibility for the various building safety risk functions set out in BSA 2022, Pt 4. Even so, it also presents practical difficulties. For new management orders (made after 6 April 2023), or for management orders that do not assign any building safety risk duties to the manager, the manager’s remit will omit the Part 4 functions, leaving those tasks with the accountable person. As a result, management responsibilities will be split, necessitating a measure of co-operation between the manager and the accountable person. For existing management orders, where the order does confer building safety risk duties on the manager, that allocation will result in duplication or overlap with the...

In this issue: Key developments and horizon scanning Service charges Disputes and remedies Repairing obligations and dilapidations Residential tenancies Property Disputes in Scotland Lex Talk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts Dates for your diary New and updated content Trackers Latest Q& As Key developments and horizon scanning The Law Society has welcomed newly tabled amendments to the Leasehold and Freehold Reform Bill designed to limit sales of new leasehold houses and to ensure that, save in exceptional cases, every new home in England and Wales starts life as freehold. However, its President, Nick Emmerson, observed that, with no current measures to advance commonhold tenure, the Society endorses the Law Commission’s 2011 recommendations to modernise freehold law, making it simpler for houses on managed estates to be sold as...

In this issue: Service Charges Trespass and adverse possession Disputes and remedies Easements and covenants Lex Talk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts Trackers Latest Q& As Service Charges Power to vary service charge proportions could only be exercised on an ad hoc basis ( Fitzroy Place Residential Ltd v Lovitt) In Fitzroy Place Residential Ltd v Lovitt [2024] All ER ( D) 91 ( Mar), [2024] UKUT 63 ( LC), the Upper Tribunal ( Lands Chamber) ( UT) rejected the appellant’s appeal from the First-tier Tribunal ( Property Chamber) ( FTT) regarding the construction of a standard-form lease employed across a large, flagship development containing both residential and commercial units. The challenge centred on the apportionments by which leaseholders of the private apartments were obliged to meet the cost of services supplied by the landlord for the development as a whole, and on the breadth of the...

In this issue: Business tenancies Neighbour disputes Enforcing security and property insolvency Residential tenancies Key developments and horizon scanning Disputes and remedies Property Disputes in Scotland Lex Talk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts New and updated content Trackers Latest Q& As Business tenancies Occupation of a flat for business purposes through a manager ( Royal Borough of Kensington & Chelsea v Mellcraft Ltd) In Royal Borough of Kensington & Chelsea v Mellcraft Ltd [2024] All ER ( D) 53 ( Mar), [2024] EWHC 539 ( Ch), the Chancery Division dismissed the appellant’s appeal from a judge’s order addressing two preliminary questions. The court held, first, that as at the expiry of the contractual term of the respondent’s lease, the respondent was in...

Note: the Civil Procedure Rule Committee ( CPRC) has stopped issuing the background papers alongside the minutes; this News Analysis is not accompanied by documents setting out the issues discussed. A copy of the minutes can be accessed here: Minutes of the Civil Procedure Rule Committee. The minutes contain references to items intended for a forthcoming Civil Procedure Rules ( CPR) and Practice Directions ( PD) update scheduled for April 2024. Please note that the CPR and PD updates have been published—see: LNB News 01/02/2024 82—163rd Practice Direction update approved—in force dates 1 February and 6 April 2024; and LNB News 01/02/2024 37— Civil Procedure ( Amendment) Rules 2024. Welcome, Minutes of 1 December 2023, and other matters (item 1) The CPRC approved the minutes of the 1 December 2023 meeting (see News Analysis: Minutes of the CPR Committee meeting—1 December 2023), subject to minor...

Barker v Shokar [2024] UKUT 17 ( LC) What are the practical implications of this case? This judgment is a further reminder of the need to ensure that applications seeking rent repayment orders engage with every material aspect of the intricate definition of what constitutes a licensable house in multiple occupation. Applications should, therefore, be prepared to deal comprehensively with those material elements. Where a dispute arises over any material fact that bears upon that definition, evidence must be produced that satisfies the criminal standard of proof. Parties litigating in the First Tier Tribunal should also ensure that the Tribunal applies its mind to all essential elements of the definition of licensable houses in multiple occupation when deciding whether an offence under HA 2004, s 40 has been committed and, in turn, whether a rent repayment order can be made. What was the...

In this issue Key developments and horizon scanning Trespass and adverse possession Easements and covenants Service charges Enfranchisement and right to manage Neighbour and party wall disputes Lex Talk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts New and updated content Trackers Key developments and horizon scanning Spring Budget 2024—measures impacting the property industry Chancellor Jeremy Hunt’s Spring Budget 2024 set out changes affecting the property sector that were anything but revolutionary, with the spotlight on furnished holiday lettings, multiple dwellings relief for stamp duty land tax ( SDLT), and a reduction to the higher capital gains tax ( CGT) rate for residential property disposals. Commentary on these announcements is provided by Chrisa Tsompani, partner at Davitt Jones Bould. See LNB News 06/03/2024 106......

In this issue: Forfeiture Electronic communications Neighbour and party wall disputes Service charges Trespass and adverse possession Residential tenancies Lease covenants and obligations Contractual disputes Repairing obligations and dilapidations Property disputes in Scotland Lex Talk®Property Disputes: a Lexis®Nexis community Further Property disputes updates Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& As Forfeiture Suing for service charges did not waive right to forfeit ( Clemente v Mindmere Ltd) In Clemente v Mindmere Ltd [2024] All ER ( D) 14 ( Feb), [2024] UKUT 50 ( LC), the Upper Tribunal ( Lands Chamber) dismissed the tenant’s appeal against the First-tier Tribunal ( Property Chamber). The FTT had concluded that administration charges of a specified amount were reasonable and, if demanded,...

Rahimi v City of Westminster Council [2024] EWCA Civ 73 What are the practical implications of this case? The Court of Appeal offered valuable clarification on a body of law that has developed incrementally since Victorian times. The court distilled the following core propositions: To establish a surrender by operation of law of a joint tenancy, the party asserting it must prove that all joint tenants and the landlord were party to an arrangement inconsistent with the joint tenancy continuing. Where a tenant gives up possession and, at the tenant’s request or with the tenant’s consent, the landlord grants a fresh tenancy to a third party, that original tenant’s conduct is sufficient to amount to unequivocal behaviour. By contrast, permanently vacating a dwelling and asking for alternative accommodation does not amount to giving up possession; factual occupation is not the same as legal...

In this issue Repairing obligations and dilapidations Enfranchisement and right to manage Residential tenancies Surrender Disputes and remedies Lex Talk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& As Repairing obligations and dilapidations The Department for Levelling Up, Housing and Communities ( DLUHC) reports that Minister for Housing and Building Safety, Lee Rowley, met council chief executives to review steps taken against owners who have not remedied safety defects in medium and high-rise buildings. Rowley pressed councils to account for how the £8m provided by the DLUHC is being used to compel rogue building owners to tackle safety concerns. The DLUHC confirmed that owners who fail to advance remediation will face robust council...

In this issue: Lease covenants and obligations Surrender Contractual matters Disputes and redress Repair duties and dilapidations Property disputes in Scotland Lex Talk®Property Disputes: a Lexis®Nexis community Further property disputes updates Daily and weekly news bulletins Dates for your diary Trackers Latest Q& As Lease covenants and obligations Statements of case; unreasonable refusal of consent ( Jacobs v Chalcot Crescent ( Management) Company Ltd) In Jacobs v Chalcot Crescent ( Management) Company Ltd [2024] EWHC 259 ( Ch), [2024] All ER ( D) 63 ( Feb), the High Court upheld the appeal after a four-day trial in the Mayors and City of London Court. Reaffirming the significance of pleadings, Mr Justice Fancourt concluded that the trial judge had erred by resolving the matter against the claimant on a basis that had not been pleaded......

Triathlon Homes LLP v Stratford Village Development Partnership and others [2024] UKFTT 26 ( PC) (not reported by Lexis Nexis®UK) What are the practical implications of this case? Since the BSA 2022 received Royal Assent on 28 June 2022, advisers have keenly anticipated how its knottier provisions would be read by the courts in practice across disputes and regulatory contexts of real significance for those operating in building safety matters daily. From that perspective, this ruling is something of a goldmine. The FTT—after the judges swiftly reconstituted themselves, having realised that, sitting as the Upper Tribunal as intended, they lacked power to make a Remediation Contribution Order ( RCO)—was confronted with a number of what could fairly be called ‘hot topics’. Chief among them, in the extensive closing part of their judgment, was an analysis of what is, and is not, pertinent when applying the ‘just and...

Jacobs v Chalcot Crescent ( Management) Company Ltd [2024] EWHC 259 ( Ch) What are the practical implications of this case? This judgment carries weight for both procedure and substance. On the procedural side, it demonstrates how a trial’s result can hinge on a pleading issue. However unfashionable such arguments are with courts and litigants, Fancourt J confirms that deciding a claim on an unpleaded basis is not permissible. If a party wishes to rely on a point not pleaded—for example one arising from the trial evidence—the burden lies on them to flag it to the judge and obtain permission to amend. Permission is improbable where it would have necessitated running the trial differently; and if no amendment is sought, any ruling resting on that new ground is exposed on appeal. It also matters for property practitioners: Fancourt J allowed the appeal from the finding that the...

Messenex Property Investments Ltd v Lanark Square Ltd [2024] EWHC 89 ( Ch) What are the practical implications of this case? This decision delivers a helpful restatement of the principles to apply when assessing a request for consent under a lease, which landlords, tenants and their advisers should bear in mind. In this matter, the tenant’s proposals, for which permission was being sought, evolved over time. The judge was required to determine precisely which applications had actually been made to the landlord pursuant to the lease, and whether the nature of an application could shift through exchanges between the parties’ transactional solicitors. Practitioners acting for tenants should accordingly keep under review whether a fresh request for consent ought to be submitted to the landlord if the proposals undergo a material change. Where a landlord refuses consent, the grounds must reflect the...

Williams v Williams and others [2024] EWCA Civ 42 What are the practical implications of this case? The key takeaway is that where a commercially used property is owned jointly, and the co-owners have neither stated their beneficial shares in an express declaration nor reached a proven express agreement, the default position is that the beneficial interests are held as tenants in common rather than as joint tenants. That contrasts with the longstanding general presumption of beneficial joint tenancy for homes and other domestic property. The difference matters particularly on the death of one co-owner, when rival claims may arise about the scope and proportion of the beneficial interests. What was the background? The dispute centred on a long-established family farm situated in West Wales. The parties to the claim were brothers and sisters. Their father had for many years previously worked the holding as a tenant. In 1986, the...

Note: the CPRC has stopped sharing the supporting papers alongside the minutes, so this News Analysis is not accompanied by any documents clarifying the issues discussed. A copy of the minutes can be accessed here: Minutes of the Civil Procedure Rule Committee. The minutes contain several references to matters intended for a forthcoming CPR and PD update scheduled for April 2024. Please note that, after this CPRC meeting, updates to the CPR and PDs were issued (see 163rd Practice Direction update approved) with in-force dates of 1 February and 6 April 2024, LNB News 01/02/2024 82, and Civil Procedure ( Amendment) Rules 2024, LNB News 01/02/2024 37. Welcome Item 1 The Chair welcomed all present to the meeting. Item 2 The minutes of the meeting on 3 November 2023 (see News Analysis: Minutes of the CPR committee meeting—3 November 2023) were agreed and the action log was...

In this issue: Surrender Trespass and adverse possession Agricultural tenancies Easements and covenants Residential tenancies Disputes and remedies Business tenancies Repairing obligations and dilapidations Rent and rates Lex Talk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& As Surrender Secure tenancy had not been surrendered and regranted following the joint tenant’s departure ( Rahimi v City of Westminster Council). In Rahimi v City of Westminster Council [2024] EWCA Civ 73, the Court of Appeal dismissed the appellant’s challenge to a decision by the same judge who had set aside an earlier judgment. That judgment had held the appellant’s grandmother became the sole tenant under a tenancy granted to her alone by the...

Mistry v Wallace Estates , LON/00AH/ HYI/2022/0012 What is the practical implications of this case? This decision matters to practitioners because, picking up from Waite v Kedai [2023] Lexis Citation 1347, it explores when the Tribunal will grant a RO, what proof it expects, and how it will frame the order in view of that material. As with Waite, it equips advisers to brief clients — developers, landlords and tenants — with improved certainty. It therefore clarifies the Tribunal’s approach to ROs in these respects. What was the background? The dispute related to Centrillion Point, Croydon, a 12-storey block containing 189 flats. Formerly offices, it was converted to homes in 2008. The core issue for the RO application was lacking fire compartmentation; further concerns covered flat entrance doors, internal doors, a protected entrance hall, the smoke shaft, and structural fire protection. Those matters formed the basis of the...

Original vendor can release restrictive covenants ( Mackenzie v Cheung & another) An additional contention advanced by the appellant—that the vendors’ use of the power constituted a derogation from grant—was likewise dismissed. Relying on Earl of Plymouth v Rees [2020] EWCA Civ 816, the Court of Appeal held that exercising a right embedded within the conveyance cannot amount to a derogation from grant. That conclusion followed from the fact the right formed part of the conveyance itself. The effect is to narrow the scope of that doctrine in relation to freehold covenants. Written by Carl Fain and Richard Miller, barristers at Tanfield Chambers. Mackenzie v Cheung & another [2024] EWCA Civ 13 What are the practical implications of this case? When a landowner enjoys the benefit of a restrictive covenant, and the conveyance is clearly and appropriately drafted to allow the original vendor, or another party...

Nilsson and another v Iqbal and another [2024] EWHC 49 ( Ch), [2024] All ER ( D) 68 ( Jan) What are the practical implications of the case? The decision confirms that a potential proprietary estoppel must be addressed even where it is not advanced by formal pleadings. The dispute was determined within a possession and sale application issued by Mr Iqbal’s trustee in bankruptcy, using an Insolvency Act 1986 application notice. Mrs Iqbal relied solely on witness statements to put forward a proprietary estoppel, without any application to serve formalised pleadings. The court nevertheless considered that defence and engaged with the point in its judgment. The ruling also serves as a reminder that unseating an express declaration of trust in a form TR1 is exceptionally challenging. The starting point is that such a declaration is conclusive. The three routes to displace the...