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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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This Practice Note explains the changes to residential occupation in Wales introduced by the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016). It outlines the revised terminology used by RH( W) A 2016, the bases on which a standard occupation contract can be ended, any preliminary requirements a landlord must satisfy before serving a valid termination notice, the steps for ending a standard occupation contract, and the format and service of notices under RH( W) A 2016. It also addresses possession proceedings under CPR Part 55. This Practice Note concerns only standard occupation contracts. For guidance on ending secure contracts, see Practice Notes: Renting Homes ( Wales) Act 2016—when are occupation contracts secure? and Renting Homes ( Wales) Act 2016—terms of secure contracts. Terminology under the Renting Homes ( Wales) Act 2016 RH( W) A 2016 introduces terminology that differs from other...
ARCHIVED : This Practice Note is archived and no longer maintained. The Renting Homes ( Wales) Act 2016 ( RH( W) A 2016) took effect on 1 December 2022. From that day, existing residential tenancies and licences—save where RH( W) A 2016 specifically excludes them—were converted into either secure or standard occupation contracts. This Practice Note examines the transitional provisions in RH( W) A 2016, Sch 12, and the Renting Homes ( Wales) Act 2016 ( Saving and Transitional Provisions) Regulations 2022 (the Transitional Regulations 2022), SI 2022/1172, which govern and regulate the conversion of existing tenancies into occupation contracts. It considers the status of tenancies and licences in existence on 1 December 2022, the terms of those arrangements, and the methods of terminating them. Status of existing tenancies and licences—converted contracts On 1 December 2022, the following forms of occupation of a...
This Practice Note outlines the principal rules on rent and rent transparency in the private rental sector in England under the Renters’ Rights Act 2025 ( RRA 2025). It covers the obligation to state the proposed rent in adverts or written offers, the ban on urging tenants to bid or pay more than the proposed rent, the ways in which rent can be varied, and limits on taking rent up front. For an overview of the core elements of RRA 2025, see Practice Note: Renters' Rights Act 2025—key provisions. Stating proposed rent and avoiding rental bidding In force from 1 May 2026, ss 56–57 of RRA 2025 aim to make the exact rent for a property clear and to curb informal bidding contests between would‑be tenants that drive prices up. A landlord, agent, or anyone acting for the landlord must not: publicise a...
This Practice Note outlines the provisions of the Renters’ Rights Act 2025 ( RRA 2025) on imposing and recovering financial penalties for breaches of discrimination rules, rent requirements, landlord redress scheme duties and the private rented sector database. It also explains the widened scope of liability for offences relating to houses in multiple occupation and selective licensing, identifies who may receive improvement notices, and summarises local housing authorities’ enforcement duties and their investigatory powers to enter premises and seize documents. For more detail, see Practice Note: Renters’ Rights Act 2025—key provisions and The Renters’ Rights Act 2025—landlords’ duties, penalties and offences. Commencement For guidance on when provisions of the RRA 2025 take effect, see Practice Note: Renters’ Rights Act 2025—key provisions— Commencement. Also see: Practice Note: Renters’ Rights Act 2025—legislation tracker Ministry of Housing, Communities and Local Government ( MHCLG) roadmap:...
This Practice Note explores the principles underpinning rent review provisions. For further help on drafting and negotiating rent review clauses, consult Practice Notes: Negotiation guide—rent review clauses—commercial leases and Drafting index—linked rent review clauses. Onerous provisions Before turning to the rent review clause itself, remember that other terms in a lease can influence the figure reached at review. Hard-won points in negotiation may carry unwelcome consequences when the rent is reassessed. In a soft market, the inclusion of onerous provisions can completely erode the uplift that a more balanced lease might otherwise secure. In a rising market, a well-advised tenant aiming to curb increases at review will press for a discount to reflect unfair or burdensome obligations. Some provisions are consistently viewed as onerous, while others change their character and effect with prevailing market conditions. The following are the terms most likely to be relied upon by...
This Practice Note sets out the various options available to a landlord in recovering rent arrears and the factors to be considered before any action is taken. It addresses the Pre- Action Protocol for Debt Claims; court-based recovery of debt; drawing on a rent deposit; issuing statutory demands ahead of bankruptcy or winding-up; pursuing former tenants, sub-tenants or guarantors; service of section 17 notices under the Landlord and Tenant ( Covenants) Act 1995; Commercial Rent Arrears Recovery ( CRAR); and the effect of insolvency on rent recovery. Before moving to recover arrears, landlords should weigh up: whether to forfeit the lease for non-payment whether the tenant is subject to any insolvency process and, if so, how that constrains the recovery options available whether any limitation period issues arise No claim can be brought to recover rent arrears once six years have passed from the date the...
This Practice Note explores the use of virtual and electronic signatures in property transactions, and highlights the practical considerations that arise when deploying virtual or e-signatures to sign property contracts and to execute property deeds. For fuller material and analysis on electronic signatures and virtual signings, see Practice Notes: Virtual execution of documents and Electronic signatures. For general guidance on executing property contracts and deeds, see Practice Notes: Contracts for the sale of land—formation, signature and variation and Property deeds—use and execution of deeds in property transactions. See also Precedent: Guide to executing deeds and documents in property transactions. HM Land Registry and accepted signatures HM Land Registry sets specific rules for the use of virtual or electronic signatures across a range of deeds and paperwork, including: most registrable property deeds application forms, consents and certificates statements of truth powers of...
This Practice Note outlines the procedure for obtaining relief from forfeiture for any breach other than rent arrears, the matters the court will consider when deciding an application for relief, the conditions attached to relief from forfeiture, and the ability of subtenants and mortgagees to apply for relief. A tenant who is threatened with, or already facing, forfeiture may seek relief. If relief is granted, the lease is revived as though it had never been terminated. The procedure for pursuing relief against forfeiture differs according to the nature of the breach. This Practice Note sets out the position relating to forfeiture for breaches other than non-payment of rent. If the breach concerns rent arrears, see Practice Note: Relief from forfeiture for rent arrears. Which interests does relief from forfeiture apply to? Relief is not confined to the termination of leases. It is also...
This Practice Note outlines the range of scenarios a developer may face when seeking vacant possession of a prospective development plot. It reviews the possible occupiers and rights that may exist, spanning business tenancies protected by Part II of the Landlord and Tenant Act 1954 ( LTA 1954), through to long-standing occupants, licensees and telecommunications operators, and the routes to end those rights and secure possession. As timing is crucial to redevelopment, the Practice Note also sets out when to serve notices and take steps to regain possession, and highlights the need for the developer to address all interests on the site. Introduction An apparently straightforward redevelopment site may carry multiple interests with varying levels of legal protection. Landlords intending to redevelop should assess what those interests are, together with the available methods and timings for bringing them to an end, well before any works are due to...
The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Governs the ongoing liability of former tenants and their guarantors for rent and service charge after a lease has been assigned. This Practice Note addresses: when arrears may be pursued from a former tenant or their guarantor the notice steps a landlord must follow to recover arrears from a former tenant or their guarantor (a ‘s 17 notice’) the entitlement to, and terms of, an overriding lease, together with the application process key considerations for landlords before issuing a s 17 notice Landlords must serve notice promptly for any ‘fixed charge’ that has fallen due, or they forfeit the right to recover it. After payment, former tenants and their guarantors may request an overriding lease. LT( C) A 1995, s 17 was introduced to tackle a significant issue faced by former tenants and guarantors during the early 1990s...
This Practice Note makes reference to: the Insolvency Act 1986 as IA 1986 the Law of Property Act 1925 as LPA 1925 the Senior Courts Act 1981 as SCA 1981 the County Courts Act 1984 as CCA 1984 the Enterprise Act 2002 as En A 2002 the Proceeds of Crime Act 2002 as POCA 2002 Scope Receivership is notably intricate because numerous variants exist. This overview distils the principal forms of receivership and considers their effect on litigation from a dispute resolution standpoint. It outlines the key categories of receivership and their implications for legal actions, reflecting the dispute resolution angle and reinforcing how appointments can significantly affect ongoing or contemplated proceedings. What is receivership? Appointing a receiver is a remedy enabling creditors and specified third parties to safeguard their interest in a company’s assets. Several categories arise depending on...
Receivers—background In English law, receivers have long functioned as a remedy for creditors and others seeking to safeguard their interests in assets, with origins reaching back to the fifteenth century. In a report from 1868, Vice‑ Chancellor Griffiths observed that appointing a receiver ranked among the oldest remedies known in this country... Law of Property Act 1925 ( LPA Receivers) The Law of Property Act 1925 ( LPA 1925) confers on a mortgagee the power to appoint a receiver when the mortgage monies fall due. A receiver is an individual appointed by a mortgagee, or by the court, whose function is to gather income from, and protect, the property over which they are appointed. In practice, a mortgagee may turn to a receiver to deal with the asset more efficiently than the mortgagee would itself, particularly where specialised expertise is required. Typical...
ARCHIVED: This Practice Note is archived and no longer maintained. It outlines the potential options and remedies available to a landlord when dealing with a tenant in default, how these were affected or curtailed during the coronavirus ( COVID-19) pandemic, and the period for which those limitations applied. For more on rent recovery, see Practice Note: Rent arrears recovery under the Commercial Rent ( Coronavirus) Act 2022 [ Archived]. Normal remedies Coronavirus ( COVID-19) remedies How long is the coronavirus ( COVID-19) remedy in force? Possession notices ( residential tenancies ) The two principal routes for ending assured shorthold tenancies ( ASTs) under the Housing Act 1988 ( HA 1988) are: section 8—requiring between two weeks’ and two months’ notice, depending on the possession ground relied upon (note that assured tenancies ( AT) must be brought to an end via section 8); or...
Losing guarantee covenants At any stage in the economic cycle, landlords seek to shield themselves against tenant default, particularly where the occupier appears high risk — for instance, a newly formed small company, a minor subsidiary, or where enforcement is expected to be expensive (as with a foreign corporation). In periods of recession, or a credit squeeze, the need for protection features in every letting. Landlords commonly require a guarantee covenant from a guarantor as ‘principal debtor’ or ‘primary obligor’; this ensures the guarantor’s liability is direct rather than simply ancillary to the tenant’s. The breadth of the guarantor’s liability turns on construing the guarantee contract, but it can never exceed that of the principal debtor. A covenant in such terms is unlikely to displace the fundamental character of a guarantor’s liability, which is secondary and generally co-extensive with the tenant’s. The general law on...
Property transactions involving both private individuals and corporate entities face a heightened risk of targeting by fraudsters, so conveyancing lawyers must remain vigilant to possible warning signs. This Practice Note reviews the fraud prevention guidance and services issued by the Law Society and HM Land Registry, together with the scope for claims against practitioners for breach of retainer and breach of trust where a transaction proves fraudulent. Each firm should operate its own policies and procedures aimed at minimising fraud risk and fulfilling all applicable regulatory duties, and these must be observed at all times. Law Society’s practice note on property and registration fraud The Law Society and HM Land Registry have jointly produced a practice note on property and registration fraud. It reflects the Law Society’s view of good practice; whilst solicitors are not compelled to follow the guidance, the Law Society states that doing so will...
This Practice Note provides links to Q& As addressing the most commonly raised issues in property disputes. The responses are not kept under review and therefore state the law only as at the date of publication. For current guidance and additional detail, use the links included within each answer. Leases and licences Licences, tenancies at will and periodic tenancies Where a landlord cannot identify the start and end of the lease periods (there is no formal lease paperwork and the reversion has only recently been acquired), how can they ascertain the date needed to serve a valid section 25 notice? In a periodic business tenancy with no written lease, where the yearly rent is settled quarterly, what notice must the tenant give to bring it to an end? Where two individuals hold a property as tenants in common and a licensee declines to leave: (a) may one...
ARCHIVED: This Practice Note has been archived and is not being maintained. The Property case tracker compiles significant 2021 judgments we consider relevant to property lawyers, presented in reverse chronological order. 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 tracks 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—2020 [ Archived]. December 2021 Hussain v Revenue and Customs Commissioners [2022] UKFTT 13 ( TC) — 23 December 2021 — CGT, main residence relief: the FTT held that, taking into account the nature, quality, length and...
Application to set aside a statutory demand served on an individual This Practice Note summarises the appropriate court or tribunal for issuing proceedings across common property dispute applications, such as setting aside statutory demands; opposed and unopposed Landlord and Tenant Act 1954 lease renewals; interim rent; assured and assured shorthold tenancy possession; light obstruction notice procedure; forfeiture; lease extensions and collective enfranchisement under the Leasehold Reform Housing and Urban Development Act 1993 and Leasehold Reform Act 1967; boundary disputes; appeals from party wall awards; trespasser (squatter) possession and/or injunctions; enforcement of possession orders; Electronic Communications Code matters; modification of restrictive covenants; service charge dispensation; terminal dilapidations; proceedings for unreasonable withholding of consent; and rent review arbitration appeals... Type of PD application — Court/ Tribunal — Authority — Further detail Application to set aside a statutory demand served on an individual — County Court, or in...
Property Disputes ( PD) This beginner’s guide sets out a primer on Property Disputes ( PD). It is designed for trainee solicitors and practitioners encountering PD for the first time. The guide highlights the principal issues that commonly arise in PD and signposts other Lexis+® UK sources and materials offering fuller detail on the subjects covered. Newcomers to PD will also benefit from the Overviews within each PD subtopic. These provide a summary of every subtopic, with links to pertinent content inside that subtopic to aid navigation. For instance, see: Property insolvency—overview. The PD module further includes a Property Disputes introductory materials topic, containing links to training materials and “ How to guides”, “ Quick guides”, plus checklists and flowcharts. The PD module centres on property disputes in England and Wales, while a distinct subtopic focusses on Scottish property disputes (see: Property disputes in...
ARCHIVED : This Practice Note has been archived and is not maintained. This year’s annual round-up surveys notable shifts from 2017 and signals what is expected in 2018. Highlights include the Digital Economy Act 2017 receiving Royal Assent, two decisions under the Landlord and Tenant Act 1954 ( LTA 1954), and a run of judgments on professional negligence in property transactions. Looking ahead to 2018, topics include the effect of the new Electronic Communications Code coming into force, and the listing of several appeals, among them Dreamvar ( UK) Ltd v Mishcon de Reya and P& P Property Ltd v Owen White & Catlin LLP. There are also updates to Lexis Nexis® content, featuring notable developments from the past year and what is planned over the next twelve months. Reviewing...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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