Legal Q&A

Under section 24 of the Landlord and Tenant Act 1954 ( LTA 1954), a tenancy within its scope does not expire unless it is brought to an end in accordance with the Act......

As a broad principle, obligation to observe or give due consideration to the Service Charge Statement rests solely with RICS members and firms regulated by RICS. Where neither the client nor its surveyors hold RICS regulation, they are under no duty to adhere to its requirements. As a practical reminder, solicitors who are not part of RICS do not have to comply with the Service Charge Statement; however, they ought to recognise that their RICS-registered clients, and/or any RICS-registered colleagues within their organisations, might still be required to comply with the Service Charge Statement......

In this Q& A, the title deeds were not received at all, rather than being mislaid or destroyed. Where deeds are absent or have been destroyed, a first registration application must explain the circumstances that led to their loss or destruction. HM Land Registry assesses each matter on its individual merits, but where the evidence does not convincingly establish those events and place the title’s history beyond doubt, it will usually award only a possessory title. For additional guidance, see Practice Note: Deducing title to unregistered land—stamp duty, mortgages, execution of documents, missing title deeds, sales of part and other considerations. First registration of title if deeds have been lost or destroyed Rule 27 of the Land Registration Rules 2003 ( LRR 2003), SI 2003/1417, was amended by the Land Registration ( Amendment) Rules 2008, SI 2008/1919, Schedule 1, rule 4(1), paragraph 8(1), and recast under the...

A rentcharge is an amount due from a landowner to a third party lacking any proprietary stake or right in that land, and so it clearly differs from ground rent, which a leaseholder pays to the freeholder. Developers frequently used rentcharges to facilitate development and building on land without paying the landowner a premium for it, with the owner receiving an ongoing income from the land instead. The Rentcharges Act 1977 ( Rc A 1977) banned the creation of any new rentcharges, save for narrow exceptions, and mandated that most existing rentcharges would end by the year 2037 ( Rc A 1977, s 3). An estate rentcharge remains one such preserved exception......

Assignment of a lease The disposal of a lease is ordinarily handled in the same manner as conveying a freehold, and any sum or premium given for the assignment (excluding a reverse premium) falls within the scope of stamp duty land tax ( SDLT). However, the incoming tenant’s acceptance of obligations under the lease—such as paying rent or complying with the tenant’s covenants—does not constitute chargeable consideration for SDLT purposes and is disregarded when assessing the tax charge......

A caution against first registration A caution against first registration safeguards an interest in the unregistered land in question. If an application is lodged to register that land for the first time, HM Land Registry will serve the cautioner with formal notice of the application. Any individual asserting ownership of an estate in land, a rentcharge, a franchise, or a profit a prendre, or holding any interest affecting such a legal estate, may enter a caution. A caution against first restriction only grants the entitlement to be informed of an application for first registration and to object to any such application......

Money Claim Online is available for issuing claims for a defined monetary amount below £100,000, excluding interest and costs. The approach to costs mirrors that applied to any other claim brought under CPR Part 7. The fixed costs regime A claim falls within the fixed costs regime where no acknowledgement of service or defence is lodged, or where the defendant admits the claim. In that situation, the claimant may seek judgment through Money Claim Online by submitting the online request form. Once judgment is entered, the claimant’s legal representative is entitled to the fixed costs under CPR 45.4, as listed in Table 2 of CPR 45, which, for a claim over £5,000, range from £30 to £70 depending on the circumstances in which judgment is obtained......

The young person is now past 18, has finished secondary schooling and is moving on to higher education. The prior maintenance arrangement has now ceased, and the child intends to seek financial provision under Schedule 1 of the Children Act 1989 ( Ch A 1989) by making their application. Under Ch A 1989, Sch 1, a parent, guardian, or special guardian of a child, or any person in whose favour a residence order is in force with respect of a child, may apply for a range of orders for the benefit of a child as provided under Sch 1......

Proceeding on the basis that the legal mortgage is valid and duly executed, the only flaw is a failure to register. The question concerns what remedies are available where a mortgage remains unregistered. Where a valid charge is created by way of legal mortgage but not entered on the register, it takes effect in equity as an equitable mortgage......

The best way to approach this issue The most effective starting point is to identify what the court will need to be persuaded of, namely: that the care order can, and ought to, be brought to an end; and that a special guardianship order may properly be substituted in its place. Whether the care order can and should be discharged turns on how far the difficulty that arose four years ago still persists. If, in truth, the threshold criteria under section 31(2) of the Children Act 1989 are no longer met, the care order can fall away. See Practice Notes: Public children—threshold criteria and Termination, discharge and variation of care and supervision orders......

Stamp duty land tax ( SDLT) Stamp duty land tax ( SDLT) applies to the chargeable consideration given for a land transaction. A land transaction arises where a chargeable interest is acquired. For SDLT purposes, chargeable consideration has a specific meaning and is set out in section 50 of the Finance Act 2003 ( FA 2003) and in FA 2003, Sch 4. It covers not just cash or money’s worth, but also other forms by which value is provided, whether directly or indirectly, to the land’s transferor......

Service charges Service charges are imposed by landlords to recoup the expenditure they incur in delivering services to a building. The precise manner in which the service charge is organised and administered is defined in the tenant’s lease or tenancy agreement. Usually, the charge meets the expense of matters such as general maintenance and repairs, insurance of the building and, where services are supplied, central heating, lifts, porters, lighting, and cleaning of common areas. The charges may additionally cover management costs borne by the landlord or a professional managing agent, together with contributions made to a reserve fund. Relationship of landlord and tenant The landlord and tenant relationship stems from medieval land law and was at first a matter solely of contract in form. Nevertheless, from very early on, the agreement conferred on the tenant an estate or proprietary interest in the land whilst...

Lease or licence? In Street v Mountford, the House of Lords set out the core indicators of a tenancy. These focus on the substance of the arrangement rather than the label attached to it: exclusive possession of specified premises Although the payment of rent may suggest a tenancy, it is not essential. Whether the proposed arrangement is a lease or a licence turns on the agreement taken as a whole; where the parties in reality confer exclusive possession, that result cannot be avoided by calling the document something else. What counts is the essence of the bargain, not its outward form or chosen description. Even where the paperwork is properly framed at the outset as a true licence, the parties’ subsequent behaviour may alter the character of the arrangement so that a tenancy is later created. For further discussion, see Practice Note: Leases and licences of...

Under the Landlord and Tenant Act 1987 ( LTA 1987), some eligible tenants of properties are given a right of first refusal. In other words, where a landlord intends to dispose of its interest in the property (whether as freeholder or superior leaseholder), it must first offer that interest to those qualifying tenants first......

Overriding interests Overriding interests split into two groups...

At common law, A has no entitlement to go onto B’s land to undertake repairs to A’s property. In the absence of an express right, or B’s permission, doing so would constitute trespass. Nevertheless, A does enjoy certain limited rights under the Access to Neighbouring Land Act 1992 ( ANLA 1992). Under section 1(1) of ANLA 1992, if A wishes to enter B’s land to carry out works to A’s land, and B refuses consent, A can apply to the court for an access order, in such circumstances and situations......

The following Q& A addresses this question: Is a sole LPA attorney permitted to purchase real property from the donor where the donor lacks mental capacity? We also direct you to: Subtopic: Lasting powers of attorney—overview (and in particular, see Practice Note: LPAs—the attorney's duties and powers) Topic: Court of Protection Commentary: Re Buckley: The Public Guardian v C: Cretney and Lush on Lasting and Enduring Powers of Attorney......

The Land Registration Act 2002 ( LRA 2002) introduced a new framework for the law of adverse possession in relation to registered land, as provided by LRA 2002, Sch 6. The revised regime offers greater protection for landowners whenever a claim for adverse possession of land is brought. Simply having adverse possession for a period exceeding twelve years no longer means the land will have been acquired by the adverse possessor. Rather, following a continuous period of ten years’ adverse possession, the squatter may apply to be registered as proprietor of that land under the scheme, as set out therein......

In such circumstances, the basis for relief would more probably be mistake or misrepresentation, rather than a breach of contract on these facts...

For the purpose of this Q& A, we have assumed that: the asset concerned is a residential dwelling property A and B hold either a freehold estate, or a leasehold granted for a term exceeding seven years A occupies a different dwelling as A’s only or principal residence, in which A has a freehold or leasehold interest A and B are not civil partners of one another and/or are separated in circumstances that are likely to be permanent A is not acquiring B’s interest as part of any business activity of buying and selling dwellings carried on by A the trust to be declared by B in favour of A will take the form of a bare trust arrangement completion of A’s acquisition will take place on or before 31 March 2021 As A’s share of the dwelling, in monetary terms, is £225,000, A will need to provide...