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Monthly Update

May 2019

The May 2019 update is now available.

Topics this month:
  • Boundaries and Adverse Possession: Adverse Possession – physical possession – laying paving slabs
  • Business Lease renewal: Landlord and tenant Act 1954, s30(1)(f) – redevelopment and planning permission
  • Easements: Rights of way and a right to park – implied easements – Rule in Wheeldon v Burrows; Fencing – interpretation of construction of provision in a conveyance
  • Landlord & Tenant (General): Frustration of lease – supervening illegality and common purpose
  • Long Leases: Right to manage – defective applications – limitation – costs; Breach of lease – noise nuisance.
  • Mortgages: LPA Receivers – sale at undervalue – good faith – special purchaser;
    Forged dispositions – mistake – rectification – exceptional circumstances
  • Planning: Judicial Review – interpretation of Policy Guidance; Planning Enforcement – Rights of Appeal
  • Property Litigation: Contracts – repudiatory breach; Landlord and tenant – breach of covenant – landlord’s right of entry
  • Residential Tenancies: Tenant Fees Act 2019
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    The next update will be in the middle of April.

    Gary Webber
    9 May 2019


    Boundaries and Adverse Possession

    Adverse Possession - Physical possession
    Thorpe v Frank
    [2019] EWCA Civ 150

    The act of laying paving slabs on the ground was enough, in the instant case, as regards a physical act of possession, to constitute a claim in adverse possession enabling the person laying the slabs to be registered as proprietor of the ground.

    Business Lease Renewal

    Landlord and Tenant Act 1954, s30(1)(f) - Redevelopment and planning permission
    Warwickshire Aviation Ltd v Littler Investments Ltd
    [2019] EWHC 633 (Ch)

    A landlord opposing renewal under ground (f) of the 1954 Act need only show a reasonable prospect of obtaining planning permission.

    Given that the local authority had a broad discretion in determining planning applications, the landlord had established on the facts a reasonable prospect of obtaining permission to demolish the premises notwithstanding the local authority's development plan contained a principle to retain and support aviation-related facilities at the airfield.


    There are two cases this month:
    • Whether an easement was implied into a mortgage under the rule in Wheeldon v Burrows and was subsequently transferred to the purchaser by virtue of section 62 of the Law of Property Act 1925?
    • Could a clause in a conveyance framed as a covenant be interpreted to constitute an easement?

  • Rights of way and a right to park - Implied easements under the rule in Wheeldon v Burrows
    Taurusbuild Ltd v McQue
    [2019] UKUT 81 (LC)

    An easement was implied into a mortgage under the rule in Wheeldon v Burrows and was subsequently transferred to the purchaser by virtue of section 62 of the Law of Property Act 1925.

    Fencing - Interpretation of construction of provision in a conveyance
    Churston Golf Club Ltd v Haddock
    [2019] EWCA Civ 544

    A clause in a conveyance where the purchaser covenanted to maintain boundary fencing took effect as a covenant and not as an easement. There was no reason to construct the clause as an easement as to do so would be at odds with both the language and the composition of the conveyance.

    Landlord and tenant (general)

    Frustration of lease - Supervening illegality and common purpose
    Canary Wharf (BP4) T1 Limited v European Medicines Agency
    [2019] EWHC 335 (Ch)

    The High Court confirmed that Brexit will not frustrate the European Medicine Agency’s lease of its London headquarters.

    Long leases

    There are two cases this month:
    • Whether a partially completed application can be saved from invalidity?
    • Whether the quality of replacement flooring gave rise to an actionable nuisance?

    Right to manage - Defective applications - limitation - costs
    Robert Court RTM Company Limited v The Lough’s Property Management Limited
    [2019] UKUT 0105 (LC)

    An application to the FTT that fails to identify what it is, is not capable of being saved from invalidity under Rule 8.

    If successful, landlords likely cannot recover their costs under Section 88 of the 2002 Act of proceedings in the FTT relating to the validity of applications under Section 84(3) from the RTM company.

    Breach of lease - Noise nuisance - standard of flooring
    Fouladi v St. Mary Abbots Court Limited
    [2018] EWHC 3501 (Ch)

    The Claimant was the leaseholder of a flat complaining of noise nuisance from her upstairs neighbours. The trial judge concluded that the floor laid as part of upstairs works was of a lower standard than the previous floor, and that those works had been carrying out in breach of the lease and had led to an actionable nuisance. On appeal these and other consequential findings were upheld.


    There are two cases this month:
    • Whether an LPA Receiver had committed a breach of duty in relation to the sale of property?
    • Whether a mortgage which had been registered by a mistake arising from a forged Transfer would be removed from the Registered title?

    LPA Receivers - Sale at undervalue
    Devon Commercial Property Ltd v Barnett
    [2019] EWHC 700 (Ch)
    The High Court dismissed a claim for damages for breach of duty against LPA Receivers who had sold commercial property to a special purchaser. The court also ruled as inadmissible, expert evidence from corporate rescue agents.

    Forged Transfer - Removal of charge
    Dhillon v Barclays Bank Plc
    [2019] EWHC 475 (Ch)

    Despite finding that a mortgage had been registered by mistake in consequence of a forged transfer, which gave rise to a right to rectification, the High Court refused to direct the removal of the charge since there were exceptional circumstances which justified it in not doing so.


    There are two cases this month:
    • A judicial review considered the correct approach to interpreting planning policy
    • The Court of Appeal considered whether it had jurisdiction to hear an appeal against the refusal of an application for leave to appeal against an Inspectors decision.

    Judicial Review - Planning Policy
    Solo Retail Limited v Torridge District Council & TJL UK Limited
    [2019] EWHC 489 (Admin)

    The Court has considered the correct approach to interpreting planning policy (NPPG).

    Planning Enforcement - Rights of Appeal
    Binning Property Corporation Ltd v Secretary of State for Housing, Communities and Local Government
    [2019] EWCA Civ 250

    The Court of Appeal found it did not have jurisdiction to hear an appeal against refusal of an application for leave to appeal to the High Court under s.289(6) of the Town and Country Planning Act 1990 against the decision of a Planning Inspector. Although significant changes to the regime for challenging planning decisions in the courts had been made in recent years, there is no rule which provides for a route of appeal against the refusal of leave to appeal to the High Court in s.289 challenges.

    Property Litigation

    There are two cases this month:
    • Whether a breach of a clause in an agreement for lease was a substantial or material breach which would allow termination
    • Whether a tenant was in breach of a covenant allowing the landlord a right of entry

    Contracts - Repudiatory breach
    Mears Ltd v Costplan Services (South East) Ltd
    [2019] EWCA Civ 502

    Whilst parties are free to agree what breaches are to be treated as material or substantial for the purposes of their contract, this needs to be set out clearly; merely using the word “material” or “substantial” is not sufficient where such a term is used to identify a breach rather than the character or quality of a breach. A patent defect will prevent certification of practical completion of building works where that defect is not trifling. Whether or not that breach is remediable is ultimately irrelevant.

    Landlord and tenant - Breach of covenant; landlord’s right of entry
    New Crane Wharf Freehold Ltd v Dovener
    [2019] UKUT 98 (LC)

    Where an entry clause requires a tenant to permit his or her landlord entry upon receipt of reasonable notice, the relevant time for the grant of permission to enter is the date and time of the proposed appointment. Unless the landlord attends at that time and is not able to enter, there is no breach of the covenant to permit entry if the tenant simply remains silent.

    Residential Tenancies

    Tenant Fees Act 2019

    An overview of the new Tenant Fees Act 2019.

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