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Monthly Update
March 2010
On this page you will find summaries of the material contained in this month's update pages. See the section contents box on the side. The next monthly update will be early in April 2010.
Gary Webber
4 March 2010
Boundaries
Adverse possession: Readers may remember this case where on the trial of a preliminary issue it was held that the claimant had acquired title to part of the river bed (where the land was unregistered) by adverse possession. That order has now been set aside. In the circumstances of the case, it was inappropriate to make the order. More...
Business lease renewal
Section 25 notices – severance – merger: On a complicated set of facts this case confirms that where the reversionary interest is severed then, in order to bring a tenancy to an end under Part II of the Landlord and Tenant Act 1954, all reversioners must act together. Service of a s25 notice by one reversioner is defective (s44(1A) of the Act confirms). Any estoppel/waiver argument raised by a reversioner in such circumstances is likely to require an express acceptance by the tenant that the notice is valid notwithstanding the reversioner’s ineligibility to serve such a notice. More...
Long leases
Marriage value – development: The issue in this case was whether the LVT should or should not have taken into account in assessing the marriage value in a collective enfranchisement claim the development value of £472,500 which could be released by developing up into the roof space and creating a further floor. More...
Recovery of valuation fees: This was an appeal from the LVT to the Upper Tribunal over the fees awarded to the landlord under s60 of the 1993 Act. Under that provision the landlord is entitled to recover inter alia a reasonable sum in respect of any valuation of the tenant’s flat obtained for the purpose of fixing the premium. The LVT was right to award costs on a “work done” rather than “fee incurred” basis. More...
Service charges - failure to comply with consultation requirements - dispensation - big loss to the landlord: This case concerned major works amounting to £270,000. The landlord failed to comply with the statutory consultation requirements and so applied to the LVT to dispense with those requirements. The LVT refused to do so even though this would have enormous financial consequences for the landlord. That decision was upheld by the Lands Tribunal. More...
Service charges - variation of lease under s35 of the 1987 Act - unfair proportions in the leases: The service charges due under some of the leases were sixteen times more than that due in respect of the largest flat in the block. Some of the tenants therefore applied to vary the lease under s35 of the Landlord and Tenant Act 1987 to provide for fairer contributions between the lessees. However, the Lands Tribunal held that s35 is not intended to deal with unfairly disproportionate service charge provisions. It only deals with the situation where there are surplus contributions or a shortfall. More...
Mortgages
Protection of unauthorised tenants: As mentioned last month this is a Private Members Bill designed to protect persons whose tenancies are not binding on mortgagees. The Bill has now been printed. More...
Sale and rent-back: The Financial Services Authority has published this Consultation Paper setting out the final rules and guidance that it proposes to apply in the sale and rent back market from 30 June 2010. More...
Planning
Four year rule - deception: A building owner was successful in obtaining a certificate of lawfulness under s171B of the Town and Country Planning Act 1990 even though he had deliberately deceived the local planning authority in relation to his application for planning permission. More...
When is building "substantially complete"?: This case seems superficially to raise the same issues. It also involved the concealment of the use of a building for dwelling purposes. However, the outcome was different – as the legal issue in the case was different. More...
Nationally significant infrastructure projects: The Government has now published the first tranche of draft policy statements as well as guidance documents and secondary legislation. More...
Property litigation and ADR
Possession claims - human rights – gateway (b) defence – mental disability: A decision by a housing authority to pursue a possession order against a non-secure tenant with mental health problems was one that no reasonable authority could have taken. The case demonstrates that gateway (b) is becoming a real factor in appropriate cases. More...
Property transactions
Perpetuities: This month's update looks at the effect of the Perpetuities and Accumulations Act 2009 on property transactions. There is also a reminder of the old law that will remain relevant for instruments coming into effect on or after 16 July 1964 but before 6 April 2010. More...
Residential tenancies
Private sector regulation: The Department for Communities and Local Government has published a consultation document, which outlines proposals for regulation of the private rented sector. There are a number of recommendations. More...
Tenancy deposit scheme: A letting agent who has taken a deposit in respect of an assured shorthold tenancy can be liable to pay a penalty under the Housing Act 2004 if he has failed to protect the deposit in accordance with the initial requirements of the appropriate scheme. However, in this case the penalty was not payable, even though the agents had failed to protect that deposit within 14 days of receipt. It was sufficient that they had done so prior the issue of the claim in respect of the penalty. More...
Damages for unlawful eviction: T was entitled to damages for unlawful eviction when L had sold the property to a third party with vacant possession while T was incarcerated in prison. More...
Restrictive covenant
A restrictive covenant was no longer enforceable because there was nothing in the deeds showing an intention that the benefit was to pass to successors in title, particularly as the deeds failed to identify the relevant benefitting land. More...
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To access full details in relation to each topic click on the appropriate links in the section contents box on the side. You can also use the drop down menu at the top of each page. To download the full update as a newsletter in a pdf or word format go to the download page.
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