News

Drafting for CRC?

Are you thinking about putting some clauses into leases to deal with the Carbon Reduction Commitment? Well, today, the Committee on Climate Change (“Independent advisors to the UK Government on tackling and preparing for climate change”) has recommended that the Government re-designs the Carbon Reduction Commitment (CRC) energy efficiency scheme prior to the start of the second phase (2013-2017), in order to reduce its complexity. (And so say all of us…). See The CRC Energy Efficiency Scheme – advice to Government on the second phase (24 September 2010). The Minister for Energy and Climate Change is quoted as saying: “My […]

Updated Land Registry identification guidance

The Land Registry has published an update to its practice guide on its identification requirements; see: Land Registry Practice Guide 67.

The updated practice guide reminds us of the transactions in respect of which identification requirements must be met on registration – including all transfers, registrable leases, charges, surrenders, most first registrations, and all discharges or releases of a registered charge in paper form, irrespective of who the lender is. In addition, the guide reminds us that identification requirements must be met in relation to any attorney acting for a transferor, transferee, lessee, chargor or chargee. However, this is not the […]

Acquiring property subject to a charge

Section 862 of the Companies Act 2006 (Charges existing on property acquired) provides as follows:

(1)This section applies where a company acquires property which is subject to a charge of a kind which would, if it had been created by the company after the acquisition of the property, have been required to be registered under this Chapter.
(2)The company must deliver the prescribed particulars of the charge, together with a certified copy of the instrument (if any) by which the charge is created or evidenced, to the registrar for registration.
(3)Subsection (2) must be complied with before the end of the […]

Bribery Act 2010

The Bribery Act 2010 comes into force next April. Corporate bodies may commit offences under the Act where a person performing services on the organisation’s behalf bribes another person with the intention of obtaining or retaining business for it. A bribe may be given where financial or other advantages are offered in return for the performance of a “relevant function” such as a public or business activity. A commercial organisation will not, however, commit an offence if it can show that it had “adequate procedures” in place to prevent bribery. The Ministry of Justice has just released a consultation paper […]

Next Monday’s online overage drafting seminar

Overage Drafting Traps
12.30pm, Monday 13th September 2010
Depsite the recession, overage continues to be a major issue in property transactions. Drafting overage agreements is fraught with difficulty. This session will look at the following issues:
– Devices used to protect overage – have you fully secured your overage?
– Dealing with onward disposals of the land.
– Land Registry restriction problems.
– Examples of overage errors arising from recent reported case cases.
– Will overage be triggered when expected? Are multiple triggers required?
– Triggering overage with planning permissions and disposals.
– Calculating the amount of SDLT to be […]

CRC guide for landlords and tenants (2nd Edition)

The second edition of the CRC guide for landlords and tenants (see The Carbon Reduction Commitment Energy Efficiency Scheme – A guide for landlords and tenants; Second edition (August 2010)) has now been published. The Guide is written by a CRC property industry working party (with representatives from private practice, the BPF, BRC, BCSC, BCO, IPF, RICS and UK GBC. The new edition is a technical update in light of the final CRC regulations, now in force, and clarifications received on various aspects of the CRC regime. The Guide also includes a section exploring the advantages and disadvantages of four […]

Titanic Quarter Ltd v Rowe

Coverage has been given in the press (see page 43, Estates Gazette, 4 September, and see also Christian Metcalfe’s EG Property Law Blog) to a recent decision of the High Court of Justice in Northern Ireland (Titanic Quarter Ltd v Rowe [2010] NICh 14 (26 August 2010)) in which the High Court sank a residential developer’s claim for specific performance of an off-plan purchase contract, where the buyer, a victim of the recession, had lost his job and was therefore simply unable to proceed with the purchase. Many developers have been seeking specific performance of residential purchase contracts in the […]

Contested 1954 Act renewals – summary judgment?

In Somerfield Stores Ltd v Spring (Sutton Coldfield) Ltd [2010] EWHC 2084 (Ch) the High Court rejects the use of summary judgment applications as a way of forcing the landlord’s hand on an opposed 1954 Act application for lease renewal. Where a landlord opposes lease renewal on the basis of ground (f) (redevelopment), the landlord has to show, at trial, that he has formed the necessary firm subjective intention to redevelop, and that he has a reasonable prospect of being able to commence redevelopment on or within a short period of regaining possession. The question in this case was whether […]

The Community Right to Build

The Community Right to Build is an interesting concept announced by the Coalition Government. The Government says that it is acting to remove red tape and bureaucracy that holds back a neighbourhood from improving its area. The Community Right to Build is at an embryonic stage. It part of the Government’s drive to create the “Big Society”. It will allow a community organisation to go ahead with development without the need for an application for planning permission, if there is overwhelming community support for the development, and minimum criteria are met. One wonders if one criterion will be: “Does not […]

CRC drafting – next steps

Late last month, on the British Property Federation’s website, a property industry working party established to explore the lease drafting implications of the Carbon Reduction Commitment published a summary of responses to its initial consultation launched in December 2009. The 22 page document can be seen by clicking on The Carbon Reduction Commitment Energy Efficiency Scheme (CRC): Consultation on the Treatment of the CRC in the context of Landlord and Tenant Relationships Summary of Responses Received.

As had already been announced last month in the Estates Gazette, the working party has not been able to identify a clear one-size-fits-all approach […]

Sale with vacant possession – lease still noted?

An appeal in the case of Area Estates Ltd v Weir [2010] EWCA Civ 801 has failed. Weir had contracted to buy freehold property from the appellant with vacant possession. In the register of title, there appeared an entry relating to a nine year lease of the property granted in 2004. The lease had allegedly been surrendered by the tenant, to the seller, in August 2006, but notice of the lease had not been removed from the register. In the sale contract, the seller promised to give vacant possession, and other terms stated that the lease, whilst still referred to […]

Dilapidation claims – latent development value

For anyone looking for an analysis and summary of the law relating to dilapidation claims, they would be well-advised to read paragraphs 11 to 70 of the judgment of His Honour Judge Toulmin CMG QC inPGF II SA & Anor v Royal & Sun Alliance Insurance Plc & Anor [2010] EWHC 1459 (TCC), and in particular his analysis of the assessment of damages in cases where a property has a latent development value which may (or may not) be realised at some stage in the future, giving rise to an argument that the possibility of valuable development means that there […]

Uncertain term not saved in equity

The case of Berrisford v Mexfield Housing Co-operative Ltd [2010] EWCA Civ 811 runs up against the fundamental landlord and tenant rule of certainty of term, and explores whether there is a difference between the tenancy agreed to be created by an occupation agreement, and the agreement itself.

In this case, a “tenancy” was granted on by Mexfield on the following terms: “The Association shall let and the Member shall take the [property] from the 13th day of December 1993 and thereafter from month to month until determined as provided in this Agreement.” The agreement provided for the tenant […]

Warning on identity theft

This week’s Law Society Gazette includes a Warning on Identity Theft, reporting on a case in Bolton where the law firm SK Solicitors says that suspected property fraudsters or money launderers have been using fake notepaper to pose as and transact in the name of the firm.

Creating fake headed notepaper on a PC is a simple task. In the article, Law Society chief executive Desmond Hudson warns solicitors to ensure that they check the identity of a firm with the Solicitors Regulation Authority if they have concerns. Of course, checking on the SRA website will only confirm that the […]

Leasehold enfranchisement of town house offices?

In Day & Anor v Hosebay Ltd [2010] EWCA Civ 748 (an appeal conjoined with Howard de Walden Estates Ltd v Lexgorge Ltd) Lord Neuberger MR has disagreed with earlier comment he himself made regarding what constitutes a “house” for enfranchisement purposes under the Leasehold Reform Act 1967, but has kept the door open for individual and corporate enfranchisements claims in relation to buildings such as town houses, now used for office purposes, but not sufficiently adapted away from residential design.

In Boss Holdings Ltd v Grosvenor West End Properties & Ors [2008] UKHL 5, when analysing the definition of a […]

Land agreements – Competition Act 1998

As forewarned in this month’s CPI Update, the Government has now made final The Competition Act 1998 (Land Agreements Exclusion Revocation) Order 2010 which revokes The Competition Act 1998 (Land Agreements Exclusion and Revocation) Order 2004 (SI 2004/1260) with effect from April 6, 2011.

The original 2004 Order excluded land agreements from the prohibitions on anti-competitive agreements imposed by section 2 of the Competition Act 1998 – known as the “Chapter I Prohibition”. By revoking the exclusion, land agreements will soon come within the Chapter I Prohibition in the Competition Act 1998. If an agreement falls foul of the […]

Mortgage repossessions

The Mortgage Repossessions (Protection of Tenants etc) Act 2010 (Commencement) Order 2010 brings
The Mortgage Repossessions (Protection of Tenants etc) Act 2010 into force on October 1, 2010.

This Act protects residential tenants of repossessed properties where a borrower had let the property without having obtained the lender’s consent. In such circumstances, the Act allows a district judge to delay repossession of the property for up to two months, to give the tenant time to relocate.

Under section 1, if a mortgagee, under a mortgage of land which consists of or includes a dwelling-house brings an action (other than an […]

Good Harvest case – no view from the Court of Appeal

We will not be getting to hear the views of the Court of Appeal on the fundamental issues of guarantor liability under the 1995 Act considered by the High Court in Good Harvest Partnership LLP v Centaur Services Ltd [2010] EWHC 330 (Ch).

Christian Metcalfe’s EG Property Blog reports (see “AGA saga case settles – Landlords harumph” that the case has settled this week out of court.

So we are left with the High Court’s decision in this case – although that is not necessarily an incorrect view of the unsatisfactory workings of the 1995 Act. Debates will rage on…