Legal News

In this issue: Key developments and horizon scanning Property transfers Property management Insurance Easements, rights and covenants Property development Property taxation Scottish property Further property updates this week Daily and weekly news briefings Trackers New Q& As Key developments and horizon scanning LURA 2023 From 31 March 2024, selected elements of the Levelling-up and Regeneration Act 2023 take effect via the Levelling-up and Regeneration Act 2023 ( Commencement No 3 and Transitional and Savings Provision) Regulations 2024, SI 2024/389. These include Part 10 on high street rental auctions, and section 229 together with Schedule 2 concerning pavement licences. See: LNB News 20/03/2024 28. Impact of BSA 2022 qualifying criteria on joint owners The Department for Levelling Up, Housing and Communities ( DLUHC) is reassessing the eligibility criteria for leaseholder protections under the Building Safety Act 2022 ( BSA...

Fire safety reinsurance facility On 13 March 2024, the Association of British Insurers ( ABI) announced that a fire safety reinsurance facility aims to expand insurers’ capacity to cover buildings pending remediation, while stimulating competition to draw more providers into the market. It is intended to bolster available capacity and encourage wider participation across the market. The facility, arranged by Mc Gill and Partners, is due to go live on 1 April 2024. It has backing from the ABI and the British Insurance Brokers’ Association and was created in the aftermath of the Grenfell disaster, when a high-rise residential block burned for 60 hours, resulting in 74 fatalities. The building’s external cladding contributed to the fire’s spread. Steve Mc Gill, founder and chief executive of Mc Gill and Partners, noted that insuring cladded, multi-occupancy properties presenting fire safety risks has long tested the sector. Yet the...

Blackhorse Investments ( Borough) Ltd v Mayor and Burgesses of the Southwark London Borough Council [2024] UKUT 33 ( LC) What are the practical implications of this case? Procedurally, this decision stands out for its close analysis of the Upper Tribunal’s ability to revisit and amend its own determinations under rule 54 of the Tribunal Procedure ( Upper Tribunal) ( Lands Chamber) Rules 2010 (the UT Rules), particularly where one party has not engaged. It is also noteworthy for its thorough exploration of the reach of the jurisdiction to alter leasehold covenants under LPA 1925, s 84. Importantly, it underscores that the power is confined to restrictions governing the user of land, and does not amount to a general licence allowing a party to pursue the variation or discharge of all lease covenants. What was the background? The Black Horse public house on Tabard Street, London SE1 (“the Black...

In this issue: Key developments and horizon scanning Easements, rights and covenants Leasing of property Residential real estate Property development Property taxation Property in Scotland Additional property updates for this week Daily and weekly news alerts Trackers New Q& As Key developments and horizon scanning Law Society summary of Spring Budget 2024 The Law Society has issued an overview summarising the Spring Budget 2024 changes to taxation for property in the sector. See: LNB News 08/03/2024 78. Source: What the spring budget 2024 means for property taxation. Proposed digital property information protocol The Digital Property Market Steering Group (a 2023-formed coalition of government and industry partners, with the Law Society as a founding member) is now inviting property practitioners to take a brief survey assessing the benefit of creating a digital property information protocol. It aims to enhance home moves, purchases and sales by promoting modern digital workflows and enabling upfront information to be more readily actioned. It would set out...

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 Transferring property Residential property Property management Easement, rights and covenants Statutory compliance Property development Property taxes Property in Scotland Lex Talk®Property: a Lexis®Nexis community Additional property updates this week Daily and weekly news alerts New and updated content Trackers Key developments and horizon scanning Spring Budget 2024 The Chancellor, Jeremy Hunt, set out measures in Spring Budget 2024 that offered few major shifts for the property sector, with the focus on furnished holiday lettings, the removal of multiple dwellings relief for stamp duty land tax ( SDLT), and a cut to the higher rate of capital gains tax ( CGT) on residential disposals. As trailed, the government will scrap the Furnished Holiday Lettings regime from 6 April 2025, thereby removing the...

Brown and another v Revenue and Customs Commissioners [2024] EWCA Civ 92 What are the practical implications of this case? The consequences for FA 2003, s 45 are relatively limited. That provision was substantially reworked with effect from 17 July 2013, and many SDLT avoidance arrangements centred on it have already been contested and concluded. Nonetheless, the idea of consideration being provided indirectly is mirrored in FA 2013, Sch 4, para 1, which defines the fundamental notion of chargeable consideration. In that light, the Court’s treatment of what amounts to consideration given indirectly has broader practical importance. It will guide advice on more intricate structures, particularly where third parties are indirectly involved in the commercial framework. The Court also addressed a procedural issue concerning how to assess the notional transaction that arises when the anti-avoidance rule in FA 2003, s 75A is engaged. There had been...

In this issue: Transferring property Leasing property Property management Statutory compliance Property development Environment, energy and buildings Property taxes Property in Scotland Additional property updates this week Daily and weekly news alerts Trackers New Q& As Transferring property Death and/or administration of an estate not a bar to adverse possession claim In Nazir v Begum [2024] EWHC 378 ( KB), the King's Bench Division rejected an appeal challenging a conclusion that the respondent had been in adverse possession of the land in dispute. Under para 12 of Sch 6 to the Land Registration Act 2002 ( LRA 2002), an individual is not treated as in adverse possession of an estate held on trust. The appellants' father, the first registered owner of the land, died intestate; the appellants secured letters of...

In this issue: Property management Residential property Statutory compliance Property development Transferring property Property taxes Additional property updates this week Daily and weekly news alerts New and updated content Trackers Property management Surrender by operation of law and regrant—principles Rahimi v City of Westminster Council [2024] EWCA 73 examined the legal yardstick where it is claimed a tenancy has been surrendered by operation of law through a surrender and regrant to a third party. Tracing the doctrine from Lyon v Reed, the Court of Appeal identified the essential elements required for a valid surrender and regrant to a third party, and concluded that on the facts no surrender had occurred. The court also set out the approach to drawing an inference of a tenancy granted by conduct to someone already in occupation. See the News Analysis by Daniel Crehan, barrister, Five Paper (junior counsel for the successful respondent): Court of Appeal addresses surrender of a joint...

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...

HMRC v Ridgway [2024] UKUT 36 ( TCC) The taxpayer acquired a property consisting of two separate registered titles. The first title covered a semi-detached house with gardens, while the second comprised adjoining land with a building known as the Old Summer House, originally used as a garage and later as an artist’s studio. His solicitor advised that, if the Old Summer House were in commercial use at completion, the lower SDLT rate for mixed-use property could be applied. Two weeks ahead of completion, the taxpayer arranged for the vendors to grant a six-month commercial lease to a photography business to support a mixed-use claim. The lease included a covenant preventing the building from being used for residential purposes. The taxpayer submitted his SDLT return on a mixed-use basis, but following an enquiry HMRC issued a closure notice assessing SDLT at the...

On 13 February 2024, the government set out a package of actions aimed at accelerating housing delivery. Among these were plans to revise national planning policy; see News Analysis: Consultation proposes to strengthen national planning policy on brownfield development. In parallel, it made the Town and Country Planning ( General Permitted Development) ( England) ( Amendment) Order 2024 ( GPDO Amendment Order), SI 2024/141, extending the range of premises captured by Class MA of the Town and Country Planning ( General Permitted Development) ( England) Order 2015 ( GPDO), SI 2015/596, Sch 2 Pt 3, which authorises the change of use from commercial, business and service uses to dwellinghouses. The government also issued a consultation proposing amendments to permitted development rights in the GPDO, to encourage the ‘gentle’ densification of towns and cities......

Brown and another v HMRC [2024] EWCA Civ 92 The arrangement in question comprised the following pre-arranged steps: the taxpayers incorporated an unlimited company the taxpayers contributed cash of an amount sufficient to fund the purchase by taking up shares and promissory notes in the company at completion: the company paid the vendors the agreed purchase price for the property and thereby acquired the property, at the same time, the company reduced its capital and made a distribution in specie of the property to the taxpayers The scheme was promoted on the footing that, as a consequence of these steps, no SDLT arose on the acquisition of the property: by the company on its purchase from the vendors, because the then...

In this issue: Statutory compliance Environment, energy and buildings Property development Property management Transferring property Property taxes Property in Scotland Additional property updates this week Daily and weekly news alerts New and updated content Trackers Statutory compliance In Triathlon Homes LLP v Stratford Village Development Partnership [2024] UKFTT 26 ( PC), the First-tier Tribunal ( FTT) offered guidance on applying the ‘just and equitable’ criterion to Remediation Contribution Orders under section 124 of the Building Safety Act 2022 ( BSA 2022). For further analysis by Andrew Butler KC, Tanfield Chambers, London, see: Building Safety Act 2022 ( Remediation contribution orders) ‘just and equitable’ test ( Triathlon Homes LLP v Stratford Village Development Partnership and others). The Law Society has issued a guide for conveyancers on the BSA 2022, prepared with government and industry in...

What does the toolkit comprise? While the heart of the toolkit is a set of model green lease clauses, free for anyone to adopt and weave into their leases, it also offers a range of supplementary materials. There is an explainer on what green leases involve and why they matter. You’ll also find advice for preparing heads of terms, since addressing sustainability from the outset is vital to securing inclusion of the clauses and to ensuring both sides engage with sustainability from the beginning of the relationship. Further content supports the owner–occupier dynamic, alongside case studies and links to additional helpful sources. The legal provisions span multiple themes and, with light, medium and dark green variants, provide the flexibility to meet people wherever they are on their sustainability journeys. How does it differ from the previous toolkit? The last refresh was in 2013. The new edition is...

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...

In this issue: Transferring property Leasing property Easements, rights and covenants Property development Residential property Statutory compliance Environment, energy and buildings Agricultural property Property in Scotland Additional property updates this week Daily and weekly news alerts Trackers Transferring property TOLATA 1996—court can take account of wishes of minority beneficiaries In Savage v Savage [2024] EWCA Civ 49, the Court of Appeal, in line with Bagum v Hafiz [2015] EWCA Civ 801, [2015] All ER ( D) 249 ( Jul), reaffirmed that section 15 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) identifies the considerations the court must address when making an order under section 14 concerning how trustees exercise their functions, or the nature or scope of a person’s interest in the trust land. The Court of Appeal also...