Legal News

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...

Fosse Urban Projects Ltd v Whyte and another [2023] UKUT 286 ( LC) A recent Upper Tribunal ruling in Fosse Urban Projects Ltd v Whyte and another warns developers to resolve restrictive covenants before breaking ground. The outcome signals a shift from a well-known earlier case and shows the Tribunal is unlikely to use its discretion to lift or alter a covenant to endorse a scheme where a developer has intentionally and knowingly breached it purely for commercial motives... Background Fosse Urban Projects Ltd (the developer) secured planning permission in July 2021 to construct a dwelling on land burdened by a covenant limiting its use to “garden land” serving an “adjoining property”. The developer later applied to the Upper Tribunal in October 2022 under section 84(1) of the Law of Property Act 1925, which empowers the Tribunal, in defined...

In this issue: Transferring property Property management Statutory compliance Environment, energy and buildings 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 Transferring property Validity of an assignment entered into by an attorney In Frischmann v Vaxeal Holdings SA [2023] EWHC 2698 ( Ch), Master Mc Quail examined the effectiveness and legal status of an assignment of certain loans, executed by the assignee signing on the assignor’s behalf as his attorney. She determined that section 136 of the Law of Property Act 1925 requires the assignor’s personal signature for legal validity; consequently, no legal assignment was created. Nevertheless, in the particular circumstances, an equitable assignment was found. See News Analysis by David Juckes, barrister at Hailsham Chambers: Validity of an...

R (on the application of Dennis) v Southwark London Borough Council [2024] EWHC 57 ( Admin) What are the practical implications of this case? This ruling carries significant ramifications for both ongoing and forthcoming development proposals where ‘drop‑in permissions’ have been, or are intended to be, employed. The court indicated that phasing provisions, including a phasing plan, may not suffice to prove severability for the purpose of accommodating a drop‑in, even within a substantial outline consent. In the wake of the decision, TCPA 1990, 96A does not seem to be an avenue available to planners to establish severability, unless the project is plainly severable already (in which event, one might query what would be the purpose......

In this issue: Key developments and horizon scanning Residential property Property management Statutory compliance Property development Easements, rights and covenants Transferring property Property insolvency Property in Scotland Additional property updates this week Daily and weekly news alerts Trackers New Q& As Key developments and horizon scanning Government launches consultation on disclosure provisions in Part 11 of the Levelling Up and Regeneration Act 2023 The government has opened a consultation to gather views on proposals, under Part 11 of the Levelling Up and Regeneration Act 2023 ( LURA 2003), to increase transparency around 'contractual control agreements' in England and Wales. It explains that by 'contractual controls' it means 'agreements, such as option agreements, that are used to control land short of outright ownership'. It further states that regulations to be made under LURA 2003 will...

In this issue: Transferring property Property management Statutory compliance Property development Easements, rights and covenants Agricultural property Property taxes Key developments and horizon scanning Additional property updates this week Daily and weekly news alerts Trackers New Q& As Transferring property Valid transfer to widow of King of Saudi Arabia The Business and Property Courts in Asturion Fondation v Alibrahim [2023] EWHC 3305 ( Ch) dismissed the claimant’s contention that a transfer by its Liechtenstein foundation to the defendant was invalid. The court concluded the individual acting for the claimant executed the transfer within his powers, and it did not conflict with the foundation’s purposes. See: [2024] All ER ( D) 43 ( Jan). Analysis to follow. Order for sale to satisfy debt—sham trust deed In Al Saud v Gibbs [2023] EWHC 3183 ( Ch), the...

The Department for Levelling Up, Housing and Communities ( DLUHC) has issued guidance clarifying the Building Safety Fund ( BSF) procedure. This guidance outlines the following......

In this issue: Transferring property Property management Residential property Environment, energy and buildings Agricultural property Property in Scotland Property taxes Additional property updates this week Daily and weekly news alerts New and updated content Trackers Transferring property The Law Society’s new draft Code for signing and exchanging property contracts 2024 The Law Society is inviting conveyancers to comment on a fresh draft code covering the signing and exchange of property contracts. We review the proposals in detail. Refer to News Analysis: The Law Society’s new draft Code for signing and exchanging property contracts 2024. Consultation on transparency of ownership of land held on trust The Department for Levelling Up, Housing and Communities, the Department for Business and Trade, HM Treasury, and HMRC have opened a consultation aimed at improving transparency around land ownership where trusts are...

Realreed Ltd v HMRC [2023] UKFTT 1042 ( TC) Realreed Ltd ( Realreed) owned a building called Chelsea Cloisters. The site comprised 656 self-contained flats. The dispute centred on the VAT position of 235 of those units that were not let on long leases. Under VATA 1994, s 31, a supply of goods or services is exempt where it falls within a description listed in Schedule 9. VATA 1994, Sch 9, Group 1, Item 1 ( Land) covers ‘the grant of any interest in or right over land or of any licence to occupy land, or, in relation to land in Scotland, any personal right to call for or be granted any such interest or right’, subject to specified carve-outs. The carve-out at Item 1(d) relates to ‘the provision in an hotel, inn, boarding house or similar establishment of sleeping...

NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities and another [2023] EWHC 2795 ( Admin) What are the practical implications of this case? Fundamentally, the judgment reiterates what is evident from EA 2021, s 98 and Sch 14: there is currently no statutory duty for planning proposals to prove delivery of a 10% biodiversity net gain, and once that duty is activated it will relate only to new submissions. Although the National Planning Policy Framework seeks a positive biodiversity net gain, this is (a) a policy matter rather than a legal requirement, and (b) contains no percentage target, so any improvement qualifies as positive and should be given appropriate weight accordingly. The ruling is also a timely reminder that the biodiversity net gain obligation is not retrospective, particularly as it is scheduled to take effect in January 2024. In...

Barclays Bank UK plc v Terry [2023] EWHC 2726 ( Ch) What are the practical implications of this case? This ruling illustrates how the court approaches rectification of the register where a mistake stems from a unilateral error by one party. It also matters more broadly, as the framework for addressing mistakes continues to have general reach, and the judgment touches on procedural aspects concerning witness statements and representative actions that practitioners will find of enduring relevance. What was the background? As part of a programme to streamline its mortgage portfolio, Barclays Bank plc undertook a long-term IT initiative to locate mortgages that had been redeemed but not formally discharged. The exercise identified over 41,000 mortgages. After review, the bank marked them as discharged on its system and sent automated applications to the Land Registry. Only once approximately 25,900 charges had been removed did the bank...

The ‘qualifying lease’ The term ‘qualifying lease’ was introduced by BSA 2022, s 119. Its importance lies in the fact that BSA 2022, Sch 8 brings in a series of restrictions on tenants’ liability to pay service charge. Put plainly (while the Act should always be consulted for its exact wording), these restrictions cover scenarios where the landlord or an associate is responsible for the relevant defect, where the landlord meets the ‘contribution condition’ (in essence, possesses a certain level of worth in relation to the number of properties owned), where the lease is under a particular value, where the defect relates to cladding, and so forth. Other than the first of these—defects for which a landlord or associate is responsible—each restriction applies solely to qualifying leases. Accordingly, holding a qualifying lease can be a valuable benefit. When, then, does a lease qualify? The answer is set out in...

Braganza v the Riverside Group Ltd [2023] UKUT 243 ( LC) What are the practical implications of this case? B’s service charge liability was framed as a ‘ Specified Proportion’ of the overall expenditure. The drafting clearly contemplated a percentage, not a monetary amount. Although the lease conferred on the landlord’s surveyor the ability to increase or reduce that figure where necessary or equitable, the document was plainly prepared on the footing that this Specified Proportion would be an initial fixed percentage. However, something appears to have gone astray at completion: in the Particulars the Specified Proportion was entered as a fixed monthly sum instead. While this did not alter the outcome of the case, it did require the landlord’s surveyor to determine a fresh Specified Proportion each year. This feature therefore highlights how vigilant practitioners must be when filling in blanks on...

Spencer v Spencer [2023] EWHC 2050 ( Ch) On 9 August 2023, Rajah J handed down judgment in Spencer v Spencer [2023] EWHC 2050 ( Ch), a farming proprietary estoppel dispute. Stephen Jourdan KC and Caroline Shea KC represented the claimant and defendants, respectively. Stephen was leading Christopher Jones, instructed by Tim Russ of Roythornes, while Caroline led Sarah Haren KC, instructed by Russell Reeves of Thrings. The claimant, Michael Spencer, asserted that his late father had assured him he would succeed to the freehold land making up the farm on his father’s death—about 405 acres—and that he had acted in reliance on those assurances so that it would be inequitable for his father to depart from them. Up until shortly before he died, his father’s wills had left the land to Michael. However, a new will executed shortly before death left the land to trustees on a...

Introduction In recent months, many commentators have examined the Court of Appeal’s ruling in Pretoria Energy Company ( Chittering) Ltd v Blankney Estates Ltd [2023] EWCA Civ 482. Much of that analysis has focussed on whether, on the particular facts, signed Heads of Terms resulted in a binding agreement for the creation or other disposition of an interest in land (here, the grant of a lease) within section 2(1) of the Law of Property ( Miscellaneous Provisions) Act 1989. This article, however, approaches the decision in terms of its possible ramifications for the procedure to contract out of LTA 1954, Pt II. In particular, remarks by Lord Justice Lewison appear to speak directly to the timing of that process and when the landlord and any guarantor should undertake it. Background facts The discussions between the appellant ( Pretoria) and the respondent ( Blankney) concerned a...

Williams and another (as the Joint Administrators of Signature Living Residential Ltd) v Alter Domus Trustees ( UK) Ltd (formerly Cortland Trustees Ltd) [2023] EWHC 1820 ( Ch), [2023] All ER ( D) 94 ( Jul) What are the practical implications of this case? This decision offers a clear demonstration of how a purchaser’s equitable lien over property can sit alongside, and potentially compete with, other forms of security. The court explores key aspects of equitable liens in the setting of buyers of off-plan apartments, including whether each purchaser’s lien is geographically confined to the specific footprint of the relevant flat. These points are worked through by reference to the different purchasers involved, providing practical guidance on scope and priority issues. The judgment also examines, from para 38, what counts as a ‘signature’ for the purposes of LP( MP) A 1989, s 2. Recent...

What is embodied carbon and why is it important? There is no single, settled definition of ‘embodied carbon’ in planning legislation or policy. In general, it refers to the greenhouse gas emissions tied to constructing a building—and, depending on the assessment’s scope, dismantling it at end of life—as opposed to the ‘operational carbon’ arising from the building’s use. Together, embodied and operational carbon contribute to a building’s whole‑life carbon emissions. Although progress is still required, the real estate industry has made notable advances in cutting operational carbon, from energy‑efficient lighting to on‑site solar PV, which means embodied carbon is becoming relatively more significant. While embodied carbon has not historically received the same attention as operational carbon, there is now broad recognition that it must be rigorously measured and assessed if the built environment is to support the government’s legally binding objective of reaching net zero by...

What are the main provisions of the Bill? The Bill, laid before the House of Commons on 17 May 2023, contains a substantial suite of reforms. The principal measures are: Abolishing section 21 notices and ending assured shorthold tenancies: Section 21 notices will be removed, so in future every claim for possession must rely on grounds under section 8 of the Housing Act 1988 ( HA 1988). With HA 1988, s 21 falling away, assured shorthold tenancies ( ASTs) will also cease (subject to any transitional arrangements), meaning all lettings will be assured tenancies. Tenancy deposit protection, a cornerstone of the present AST framework, will remain in force; where a landlord fails to meet the deposit requirements, service of a valid section 8 notice will be barred for almost all grounds. Ending fixed-term tenancies: Fixed terms will be prohibited, with all tenancies becoming periodic. Each period must be...