Legal Practice Notes

Possession ' Possession' and 'occupation' are not synonymous terms. A covenant in a lease that bars parting with possession is not breached where, in law, the tenant retains possession, even if another is permitted to use and occupy the premises. Possession encompasses the entitlement to collect rents and income from the property. A tenant only parts with possession if the person admitted to occupation holds the power to exclude everyone else, the tenant included, from the premises. Hence, in Reiner v Triplark, the tenant parted with possession by assigning the lease, notwithstanding that the assignment was unregistered at HM Land Registry and legal title remained with the tenant; the assignee had assumed control of the premises and could exclude all others. Where there is a prohibition on sharing possession, the term ‘possession’ is construed with the same strictness and does not extend to, and...

Form of covenant The tenant’s capacity to assign or underlet turns on the covenant contained in the lease. Careful analysis of the covenant is essential to identify whether it limits assignment or underletting and, if so, the scope of that limitation. No covenant Although uncommon in modern leases, some long residential leases impose no constraint on assignment or underletting other than notifying the landlord. Where no restriction exists, the tenant is at liberty to assign or underlet as it wishes. Absolute covenant A provision that wholly forbids any assignment or underletting is commonly called an absolute covenant. Such covenants are not modified by statute and therefore operate as a complete prohibition. Even so, the wording should be scrutinised to determine exactly what conduct is barred. The presence of an absolute covenant does not stop the tenant from requesting consent, nor the landlord from giving it (a party with the...

Under the Landlord and Tenant ( Covenants) Act 1995, tenants and any guarantors are automatically discharged from tenant covenants when the lease is assigned. By contrast, the Act provides no automatic release for landlords. Instead, on assigning the reversion, a landlord may ask its tenants, under sections 6–8, to be released from the landlord covenants; a former landlord that chose not to seek release, or missed the time limit, may apply when the reversion is next assigned. These statutory provisions apply only to new tenancies and therefore do not assist parties: to leases granted before 1 January 1996; or to leases granted after 31 December 1995 but under an agreement for lease, option, or court order made before that date Should the landlord seek release? It is not invariably wise for a landlord to pursue a release from covenants in a multi-let building or...

This Practice Note This Practice Note explains the rules that govern the assessment of fixed costs in land claims where proceedings were started before 1 October 2023. It outlines the method for calculating fixed costs, the further costs recoverable, and the expense of obtaining a judgment. Note that this Practice Note addresses the current fixed costs regime for land claims. From 1 October 2023, the earlier provisions and the relevant Tables for land claims were renumbered within CPR 45 or relocated to CPR PD 45. Nevertheless, the substantive provisions and the Tables themselves have not altered in terms of content at all whatsoever......

Interested parties In the context of judicial review, an interested party refers to any person—other than the claimant and defendant—who is directly affected by the claim. Where a judicial review claim is connected to proceedings in a court or a tribunal, every other party to those proceedings will qualify as an interested party in the review; eg if a defendant in a criminal case in the Magistrates or Crown Court brings a judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim. A person is regarded as directly affected if they are affected without the intervention of any intermediate agency, that is, without the involvement of any intervening body. For example, in R v Rent Officer Service, ex parte Muldoon, a local housing authority’s decision not to pay a housing benefit was...

This Practice Note outlines joint and several liability of co-debtors, identifies who may be pursued under each liability type, explains judicial treatment of a covenant not to sue, describes the effect of releasing debtors, and refers to the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). Joint and several liability Where a covenant is undertaken by two or more persons, they may be liable: joint several, or joint and several The nature of the liability is a matter of construction and turns on the parties’ intention as evidenced by the terms of the relevant document. The presumption, in the absence of express wording, is that liability is joint. An illustration of joint liability is two people who together are the tenant under a lease. An illustration of several liability is the liability of the original tenant and an...

This Practice Note ought to be read alongside Practice Note: Starting civil claims in the County Court, which addresses the general approach to commencing civil claims in the County Court. This Note explains where and how to issue a County Court money claim ( CCMC) under CPR 7. For guidance on issuing a claim in the County Court under CPR 8 (used where there is no substantial dispute of fact and for certain categories of proceedings), see Practice Note: Starting civil claims in the County Court— Where to issue CPR 8 claims in the County Court... What is a County Court money claim ( CCMC)? A money claim may pursue a specified or an unspecified sum ( CPR PD 7A, para 5.1(1)(b)) and includes a claim for damages—the CPR glossary defines damages as a ‘sum of money awarded by the court as...

The way land is used and occupied commonly relies on the land enjoying easements—for instance, a right of way or a right to drain. Such rights might be created by express grant, arise by long use (prescription), or be implied into the land’s original transfer. As ownership or patterns of use shift over time, it is often necessary to assess the character and scope of any easements that have been conferred or obtained. A buyer will want assurance that the easements benefiting the property are adequate for their particular requirements. Conversely, the owner of servient land may contend that a fresh or intensified exercise of an easement by the dominant tenement amounts to ‘excessive user’. There is no universal rule for construing easements; each dispute is determined on its own facts. That said, where an easement has been expressly granted, the primary...

Where a lease contains no express repairing covenant, each party’s responsibility for repairs is curtailed. For landlords, liability is shaped by a mix of common law principles and statutory regimes; for tenants, it turns on the doctrine of waste and the implied duty to use the premises in a tenant‑like fashion. This Practice Note outlines those obligations and sources, addressing: what constitutes waste the distinct categories of waste the consequences if a tenant permits the property to decline the meaning of use in a ‘tenant-like manner’ Landlord's repairing obligations The landlord bears repairing duties only to the extent required by any express terms in the tenancy (in relation to which, see Practice Note: What is the appropriate standard of repair?)......

This Practice Note looks at how to obtain official copies of the registers and plans maintained by HM Land Registry ( HMLR) in respect of individual registered titles relating to freehold and leasehold land in England and Wales. It sets out how to obtain official copies where you have only: the title number or the property’s address the property’s location, or the name of the registered proprietor Property practitioners ought, as a matter of routine, to secure up-to-date official copies of all relevant title documents at the outset of a property transaction. Practitioners in other areas may likewise find it helpful or necessary to obtain official copies when involved in transactions concerning property......

This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...

Security over land Security can be taken over real property by means of a mortgage or a charge, with the form selected typically hinging on the importance of the land to the borrower’s business or its relevance to the arrangement and the circumstances of the particular transaction in question. If the land is a key asset, or the facility funds acquisition or development, funders tend to insist on a charge by way of legal mortgage. Where the property is of lesser importance, they may accept an equitable mortgage or charge. Lenders frequently take a debenture, combining fixed and floating security over all the borrower’s assets, capturing its rights, title and interest in the real property it owns. A charge by way of legal mortgage is usually included within the debenture, though it can also be set out as a standalone security document, or as a...

This Practice Note outlines the principal features of judgments from the Upper Tribunal and higher courts under the Electronic Communications Code, contained in Schedule 3A to the Communications Act 2003, and identifies the relevant Code provisions together with the result in each matter. For further assistance on the Code, consult Practice Notes: The Electronic Communications Code—code rights and The Electronic Communications Code—terminating and renewing code rights. Imposing Code rights and agreements Case and Court/ Tribunal Provisions of Code considered Decision Further details below Case and Court/ Tribunal: Cornerstone v University of London [2018] UKUT 356 ( LC)— Upper Tribunal ( Lands Chamber) ( UT) and University of London v Cornerstone [2019] EWCA Civ 2075— Court of Appeal Provisions of Code considered: Para 26 (interim Code rights) Decision: A short-term access permission to carry out a survey (known as a...

This Practice Note considers who bears the burden of repairing and looking after land affected by easements, and who must meet the expense of ongoing upkeep, especially where no express provision allocates responsibility for carrying out works and/or funding repair and maintenance. It also addresses the position in the absence of any explicit agreement setting out duties or cost‑sharing. The focus is on responsibility where obligations are not expressly allocated between parties... Is there an obligation to repair? An easement confers a liberty to do something on another’s land, or to restrain something from being done; it is not a duty to act. In the Scottish decision of Moncrieff v Jamieson, Lord Scott observed that a right which can only be enjoyed if the servient owner undertakes positive acts cannot amount to an easement. Nonetheless, in day-to-day situations easements often entail action: a track may...

In England and Wales, bankruptcy is the formal mechanism by which a court or the bankruptcy adjudicator makes a bankruptcy order against an individual. Although a company can proceed to voluntary liquidation without the court’s involvement, only the court or the adjudicator can place an individual into bankruptcy. The route available to a debtor’s creditors follows a set procedure, which may include a pre-action step (the statutory demand), and is taken under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. The Practice Direction on Insolvency Proceedings ( PDIP) applies as well. Types of bankruptcy petition and who can present one creditors' petition—any creditor, whether acting alone or with other creditors, who is owed a liquidated, undisputed sum meeting or exceeding the bankruptcy limit (for petitions presented on or after 1 October 2015,...

This Practice Note sets out how to bring a possession claim when a lease or licence has ended, for both residential and commercial premises. It covers Part 55 of the Civil Procedure Rules ( CPR 55), preparing the claim, and practical points for the hearing. For guidance in other situations requiring possession proceedings, see Practice Notes: Terminating assured and assured shorthold tenancies—pre- Renters' Rights Act position Forfeiture of a lease Trespassers—possession proceedings LTA 1954 business lease renewal—proceedings Mortgage possession claims Entitlement to possession A tenant’s right to occupy ends after the contractual term expires in several cases, including: the lease is commercial and is contracted out of the security of tenure provisions of LTA 1954, or security of tenure is otherwise lost (see Practice Note: LTA 1954 business lease...

This Practice Note outlines how the court exercises its discretion on costs under the Senior Courts Act 1981 ( SCA 1981) and CPR 44. It addresses what a costs order may cover, potential complications with foreign currency, costs orders following split trials, orders where proceedings are stayed, and orders made on appeal. It also discusses a solicitor’s duty to advise their client about any costs order. For details on particular categories of costs orders, see: Costs orders—overview and Practice Note: Costs orders—purpose, what to include and different types. For guidance on costs orders expressed in a foreign currency, see Practice Note: Foreign currency claims. Court’s discretion to deal with costs— Senior Courts Act 1981 There is no automatic right to recover expenditure incurred during litigation—recovery lies within the court’s discretion, as provided for in statute and the Civil Procedure Rules ( CPR). SCA 1981, s 51...

This Practice Note examines the requirements of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) for putting in place a valid contract for the sale, or any other disposition, of an interest in land. It offers direction on the execution and exchange of land sale contracts, sets out what is needed to vary a property contract, and highlights the choices available where an agreement fails to satisfy the statutory conditions for a valid contract. Introduction A contract for the sale, or other disposition, of an interest in land is of no effect unless it complies with LP( MP) A 1989, s 2......

This Practice Note examines how to contract out of the Landlord and Tenant Act 1954 ( LTA 1954), flags typical traps that may arise during that process, and suggests ways to steer clear of them. Why contract out? LTA 1954 granted business occupiers security of tenure—meaning a continuing right to remain in their premises once the contractual term of the lease expires. A landlord that lets to a tenant with the protection of security of tenure can only terminate and recover possession by complying with the procedures prescribed by LTA 1954. Even then, the landlord must prove one of the narrow statutory grounds for possession set out in LTA 1954, s 30, and achieving possession will often entail paying compensation to the tenant. As a result, a tenant with LTA 1954 security of tenure is in a very powerful bargaining position where the landlord seeks vacant...

For any dispute resolution lawyer scrutinising a contract during a dispute, two central questions arise: what does the contract signify? what rights and obligations do the parties hold under it? This Practice Note explains the five interpretative principles the courts employ to address those questions, first articulated by Lord Hoffmann in 1998 in the leading case Investors Compensation Scheme v West Bromwich Building Society ( ICS), with additional guidance from later Supreme Court authorities: Rainy Sky v Kookmin (2011), Arnold v Britton (2015) and Wood v Capita (2017), as outlined further below. Read this alongside Practice Note: Contract interpretation—rules of contract interpretation. Depending on the forum in which your case is heard, you should also consider any extra requirements—see below: Court specific guidance. ICS v West Bromwich Building Society— Lord Hoffman's guiding principles In 1998, in Investors Compensation Scheme v West Bromwich Building Society, Lord...