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Monthly Update
May 2008
Business lease renewal
Contracting out
Where a notice informing the prospective T that the lease is to be contracted out of Part II of the 1954 Act is served more than 14 days before the lease is entered into para 3 of Schedule 2 to the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 says that the tenant (or duly authorised person) “must” sign a simple declaration. However, if he in fact signs a statutory declaration that will still be effective. More...
New terms
T had the benefit of a licence from L for its customers and delivery men to park on the forecourt outside the demised premises. However, there was no right under the lease to that effect. On renewing the lease T was unable to obtain a term of the new lease giving it parking rights. Such rights were outside s32(3) of the Landlord and Tenant Act 1954. Further, there is no jurisdiction under s35(1) of the 1954 Act to enlarge the holding by ordering the grant of an right over L’s land that T had not previously enjoyed.
Co-ownership
Mother and daughter purchasing for investment
One of the principal points to emerge from Stack v Dowden is the presumption in cohabitation cases that the beneficial interests follow the legal title. In Adekunle v Ritchie the court applied the same reasoning to a domestic sharing arrangement involving mother and son. But what if the purpose of the arrangement is an investment – to generate rental income and capital appreciation? Do the same principles apply? And how should the court deal with the right to buy discount and an assumption of joint liability under a mortgage? More...
Long leases
House - is it a house if it is dilapidated
Section 2 of the Leasehold Reform Act 1967 provides that the term “house” includes any building “designed or adapted for living in” and “reasonably so called”. As per Lord Neuberger, s 2 involves a two part test. One looks first to see whether the property was originally designed for living in. One then goes on to consider whether work has subsequently been done to the property so that the original "design" has been changed. More...
Variation of lease terms
The Leasehold Valuation Tribunal has power under s38 of the Landlord and Tenant Act 1987 to vary a lease that fails to make satisfactory provisions with respect to one or more of the matters mentioned in s35. However, it will not do so merely because the lease is not in modern form. More...
Mortgages
Early repayment charge
In this case the CA looked at the application of the Unfair Terms in Consumer Contracts Regulations 1999 to mortgage cases. The Regulations apply to contracts concluded between a seller or supplier and a consumer, and for these purposes ‘consumer’ means “a natural person…acting for purposes which are outside his trade, business or profession”. But how do you identify the purpose and what if there are mixed purposes? It was held that the claimant borrower was a consumer and that a term providing for payment of a substantial early redemption penalty in a secured credit agreement made between the claimant and the defendant lender was unfair. More...
Nuisance
Effect of planning permission – damages in lieu
In a case in which the claimants complained about the noise caused by a racing circuit the court applied the rule that the fact that there is planning permission in existence in respect of the sue does not of itself authorise the nuisance. Some of the activities did constitute a nuisance. However, damages were awarded in lieu of an injunction, primarily because of the delay in bringing proceedings. The damages were calculated on the basis of loss in value of the neighbouring properties. More...
Planning
Offence – breach of enforcement notice - defence
In determining whether a defence under s179(3) Town and Country Planning Act 1990 is established, the question to be considered is whether it had been within the defendant’s power to comply with the enforcement notice without the assistance of others. Issues of hardship and the reasonableness of compliance are irrelevant at the prosecution stage as those matters are considered at the time that action is taken by the local authority in respect of breach of planning control which includes the service of the notice and the subsequent appeal against the notice.
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Property transactions
Deposit - s49 – exercise of discretion
This case considers the factors that a court should bear in mind when deciding whether or not to exercise its discretion to return a buyer’s deposit under s49(2) of the Law of Property Act 1925, and illustrates how exceptional it is for such a deposit to be returned, where the buyer is unable either to complete or to offer alternatives to the seller. More ...
Overage
This case deals with the interpretation of drafting in an overage clause, and shows how crucial it is for the draftsperson to consider all future possibilities when drafting such a clause. More ...
Rectification
This case illustrates that rectification is not always available just because the parties have made a mistake in connection with a document. The parties’ only mistake was as to the effect of the contract (it was in fact unenforceable because it failed to comply with the requirements of s2 of the Law of Property (Miscellaneous Provisions) Act 1989), but the omission from the contract of how the price was to be apportioned was deliberate on their part and so could not be rectified. More ...
Registered land - challenging the register
The right to be registered as proprietor of land at H. M. Land Registry is a private, not a public, right, and as such, any party seeking to challenge a person’s registration must have the necessary standing to do so. More ...
Residential tenancies
Right to buy - relationship to possession claim
This case give guidance on weighing a possession claim against a claim under the right to buy provisions of Housing Act 1985 and whether a possession order removes a tenant’s right to buy premises which are offered as alternative accommodation. More ...
Right to buy - revival of tenancy
Reversing the decision below, the CA held that the right to buy may be exercised where the tenant has been subject to a possession order which has been discharged.
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Gary Webber
9 May 2008
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