Legal Practice Notes

ARCHIVED : This Practice Note has been archived and is not maintained. The Property case tracker presents key 2025 judgments we regard as relevant to property lawyers. Items are ordered with the latest first. The tracker uses the following definitions: AST: assured shorthold tenancy; CVA: company voluntary arrangement; FTT: First-tier Tribunal; HMO: house in multiple occupation; LPA: local planning authority; NPPF: National Planning Policy Framework; RRO: rent repayment order; RTM: right to manage; TCC: Technology and Construction Court; UT: Upper Tribunal ( Lands Chamber); VTE: Valuation Tribunal for England See also the Property key future developments tracker, which follows the progress and outcome of appeal cases, whereas this document provides a summary of all cases that we consider relevant to property lawyers. See further: Property case tracker—2024 [ Archived] Property case...

This Practice Note explains the process for seeking an order for sale to realise a charging order under CPR 73.10C, including the key steps. It offers detailed direction on reading and using the pertinent CPR provisions and on their practical operation in applications before the court. Requirements may vary by the court handling your case, and you should be alert to any extra rules—see further under: Court specific guidance below in practice. Amendments to the rules took effect on 6 April 2016. Nonetheless, where the charging order predates 6 April 2016 and you seek an order for sale to enforce it, you are advised to continue to use the framework set out in the (amended) CPR 73—see Practice Note: Pre-6 April 2016—charging orders—what are they and when to use them [ Archived]. For further help with obtaining a charging order, refer to Practice Notes: Charging...

This Practice Note explains the very limited circumstances in which an easement can be used for the benefit of subsequently acquired land. For broad guidance on what easements are, consult Practice Note: Easements—nature and characteristics. See also: Easements—overview. Where an easement is created expressly, the scope of the land that enjoys it (the dominant land) and the land upon which it is imposed (the servient land) must be certain at the date of the grant. The advantage conferred by an easement does not reach to any land later appended or joined to the dominant land. If an easement is asserted by prescription or long user, the limits of both dominant and servient land must be established by the evidence relied upon to found the claim. As with express grants, the benefit of a right obtained by prescription or long user cannot be...

This Practice Note outlines what a Part 8 ( CPR 8) claim is and when appropriate. It also identifies CPR provisions that are disapplied for Part 8 proceedings. It explains commencing a Part 8 claim, offering practical guidance on completing and serving the claim form. It addresses case management and costs management points; extensions of time for service of the claim form and supporting evidence; and the scope to pursue CPR 20 claims. It further covers how to respond to a Part 8 claim, including challenging the suitability of the Part 8 route, lodging evidence, seeking summary judgment within a Part 8 claim, and moving Part 8 claims to Part 7 ( CPR 7). The Practice Note gives direction on construing and applying the relevant CPR provisions. Depending on the court handling your case, you may need to consider extra...

Introduction A charging order affecting land needs safeguarding by registration at each step in obtaining it, to preserve its precedence over rival interests and, crucially, to avoid it being ineffective against a purchaser for value. That said, the appropriate method of protection—and, on one occasion, whether any protection is possible—depends on the nature of the charged land interest. For registration, the critical divide is between an order attaching to the legal estate and one securing a beneficial interest under a trust of land. The importance of this difference is addressed under Protecting the charging order below... Protecting an application for a charging order Registered land Under the Land Registration Act 2002 ( LRA 2002), a pending land action takes its meaning from section 17 of the Land Charges Act 1972 ( LCA 1972), namely ‘any action or proceeding pending in court relating to land or any...

Where two or more people co-own land, they do so under a trust of land. In such a trust, the legal estate and equitable estate are distinct. The legal estate must be held by the co-owners as joint tenants. The beneficial interest may, however, be held by the co-owners either as: joint tenants, or tenants in common If they are joint tenants, each holds an indivisible interest: each owns the whole rather than a defined share. The right of survivorship applies, so on the death of one joint tenant, that person’s interest passes automatically to the other(s). If the beneficial interest is held as tenants in common, shares can be unequal, and a person’s share does not pass to the survivor but forms part of the deceased’s estate. A tenancy in common may arise on the original transfer or conveyance by an express...

For parties and counsel running arbitrations with a seat in England and Wales or Northern Ireland ( England being used here as a shorthand), and for those pursuing recognition or enforcement of domestic or overseas awards before the courts of England and Wales, a grasp of the Arbitration Act 1996 ( AA 1996) and the extent to which it may govern proceedings seated in England is essential. In contrast with the statutes of arbitral seats, such as Hong Kong’s Arbitration Ordinance ( Cap 609), the AA 1996 neither transposes nor is chiefly derived from the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), though it owes much to that framework......

Under section 101(1)(iii) of the Law of Property Act 1925 ( LPA 1925), a mortgagee may appoint a receiver (an LPA receiver) if the mortgage takes effect by deed. The scope of an LPA receiver’s authority is prescribed by section 109(3) LPA 1925 and is confined to calling in income (such as rent) from the charged property. It is essentially a right to receive monies that the property yields. An LPA receiver lacks any authority to dispose of the property by sale. Because the statutory powers are narrow, security instruments typically add express terms allowing the secured party to appoint a receiver in stated events, and to confer wider powers than those available under the LPA 1925. These frequently include a power to sell the asset by that receiver. Authority to effect a sale will ordinarily be sourced from the...

How are works completed if access to neighbouring land is necessary? Does a landowner have the ability to lawfully go onto adjacent land, such as the garden next door, where vital works cannot be undertaken without stepping onto that adjoining property? This Practice Note explains when entry is permitted at common law, and sets out the Access to Neighbouring Land Act 1992, access orders, related enforcement and the position of third parties. Frequently, repairs or improvements are, in practice, impracticable unless one crosses onto someone else’s land (for example, where the building line lies very close to the boundary). At common law, there is ordinarily no entitlement to enter without: an easement affecting the neighbouring land, or the adjoining owner’s consent Unauthorised entry amounts to trespass and accordingly can be restrained by injunction, even where the person seeking to enter the...

The Party Wall etc Act 1996 ( PWA 1996) sets the rules for how a building owner sharing a boundary with an adjoining owner may undertake works. This Practice Note summarises the functions of the PWA 1996; for fuller guidance, see Practice Note: Party Wall works—notices, disputes and awards. Purpose of the Party Wall etc Act 1996 The PWA 1996 applies where a building owner intends to: carry out works to existing party walls or structures erect a new wall or structure on the boundary line with an adjoining property, or excavate within three or six metres of an adjoining building or structure (depending on the depth of the works) The Act grants building owners rights to do works to party walls that would otherwise amount to trespass on neighbouring property, or create a risk of liability for the tort of...

The basic rule at common law is that when the term of a lease expires, any underlease falls away automatically. There are, nonetheless, recognised exceptions. This Practice Note addresses surrender, merger, surrender coupled with the grant of a fresh lease, operation of a break in a lease or headlease, tenant-side considerations, security of tenure, forfeiture of a lease or headlease, and whether a sub-tenant or undertenant can apply for relief from forfeiture. Consensual termination—surrender or merger Statute steps in upon the surrender of a lease. As a consensual ending, the tenant’s estate is treated as transferring to the landlord, but subject to the undertenant’s rights. A merger has the same effect. The underlease continues, and the landlord assumes both the benefits and burdens of the covenants in the underlease. Consensual termination—surrender and grant of new lease The same position applies where the lease is...

Development of the First Tier Tribunal for Scotland The Scottish Government’s Access to Justice Policy, prepared by the Cabinet Secretary for Justice within the Justice Directorate, seeks to: support individuals to settle disputes outwith court deliver a modern, up-to-date justice system broaden access to justice, and make the Tribunals system user-friendly (see the First-tier Tribunal for Scotland Housing and Property Chamber procedures consultation) As set out in the Housing ( Scotland) Bill, the intention is to create a forum that is less adversarial than the courts and could remove the necessity for legal representation. There is, crucially, a recognised need for more efficient, specialist routes into the justice system for both tenants and landlords. To achieve this, proposals recommended simplifying the tribunal landscape by bringing Scotland’s various tribunals under a single umbrella, safeguarding their independence from the Scottish Government, and embedding consistent practices and procedures (see: Access to Justice...

Practice Note This Practice Note summarises jurisdiction in Scotland, addressing the evaluation of whether a dispute is appropriate to be determined and resolved within Scotland......

Practice Note This Practice Note sets out the applicable practice and procedure that applies to the winding up of a company (the debtor) pursuant to a creditors’ winding-up petition. The most frequent circumstances in which such a petition is presented are as follows: a creditor has served a statutory demand on the debtor and, after the 21-day period has lapsed, the company has not paid, secured, or compounded the amount due (see Practice Note: Company statutory demand)......

This Practice Note sets out the scope of the 'without prejudice rule' governing the admissibility of material generated by bona fide settlement discussions. It clarifies when spoken and written communications are protected by, or fall outside, this head of privilege. It considers if pre-action exchanges may attract 'without prejudice' status, the significance of explicitly marking correspondence 'without prejudice', and how the principle applies across a chain of documents. It outlines the recognised exceptions that can render 'without prejudice' material admissible, including circumstances where extracts are deployed to cherry-pick the narrative, illustrated by examples, together with the notion of waiving 'without prejudice' privilege. The treatment of 'without prejudice' communications in the context of mediations is addressed, as are Calderbank offers marked 'without prejudice save as to costs'. Without prejudice rule The policy is that communications between disputing parties containing admissions or statements made on a...

Practice Note It has long been settled that a winding-up should not be set in motion where the petition debt is genuinely and substantially in dispute. Should an alleged creditor nonetheless try to proceed, the court may rely on its inherent jurisdiction to prevent a petition being presented. Moreover, treating the winding-up court as a tool for chasing debts amounts to an abuse of process. Yet there remains controversy over what amounts to a ‘genuine dispute’. This Practice Note reviews scenarios in which petition debts have been challenged and identifies key principles that emerge from the authorities and recent case law guidance and relevant commentary......

This Practice Note outlines the key criminal offences and civil protections against unlawful eviction affecting certain tenants and licensees. Unlawful eviction and harassment—criminal offences A landlord commits a criminal offence under section 1 of the Protection from Eviction Act 1977 ( PEA 1977) if they: unlawfully exclude a residential tenant or occupier from possession of the premises, or any part of it, or attempt to do so (it is a defence to have believed, with reasonable cause, that the occupier had stopped living in the premises), or carry out acts likely to disturb the peace or comfort of the residential tenant or any member of their household, or persistently cut off or withhold services reasonably required for occupation of the premises as a home. The landlord must either intend to induce the occupier to give up occupation or to refrain from...

Part 3, Schedule 5 Parts 1–6 and Schedule 6 of the Consumer Rights Act 2015 ( CRA 2015) establish a consolidated, generic suite of investigatory powers to be used across the catalogue of consumer protection legislation. These powers amount to a consolidation, refinement and amendment of those that previously stemmed from the fractured legislative framework that once governed consumer law. Enforcers with access to the generic set of investigatory powers under CRA 2015 Various regulatory bodies and enforcers are responsible for applying consumer law in the UK. Under the CRA 2015, an enforcer’s type is determined by the legislation or offences being addressed, and the powers available to them depend on that classification. The CRA 2015 provides for four categories of enforcer: domestic enforcers who have responsibility to enforce consumer law in the UK. In relation to England and Wales, this includes Trading...

This Practice Note offers guidance on statements of truth under CPR 22 and CPR PD 22. It clarifies what a statement of truth is, identifies which documents must be verified by one and sets out the standard wording. It also explains who may sign the statement of truth (including solicitors, and scenarios involving multiple parties or group litigation), addresses the use of electronic signatures (referred to in CPR 5.3 as signatures ‘printed by computer or other mechanical means’), and highlights the repercussions of either failing to sign or making a false statement of truth, including the risk of contempt of court. Depending on the court handling your matter, you may need to consider additional requirements—see: Court specific guidance. Amendments to CPR 22 and CPR PD 22—1 October 2023 CPR 22 and CPR PD 22 are revised with effect from 1 October 2023—see: LNB News...

Specific performance Where a party to a property contract does not honour its obligations, the other side may seek an order compelling performance. Specific performance is an equitable, discretionary remedy that, if granted, requires a party to fulfil a contractual duty. This note outlines when a court will, and will not, make such an order. The remedy is available at the court’s discretion where an award of damages would be inadequate, or where specific performance would achieve ‘more perfect and complete justice’. Given the distinctive character of land, buyers or tenants may prefer this remedy when a seller or landlord fails to complete. As a general rule, agreements granting interests in land are ordinarily susceptible to specific enforcement. Up to completion, the seller holds the property on constructive trust for the buyer. That position is particularly valuable on the seller’s insolvency, as the buyer may assert a...