News

Policy change on section 106 affordable housing requirements

The Government has withdrawn a policy change in relation to section 106 affordable housing restrictions on small sites.

Last November, the Government announced a number of changes to national planning policy in relation to section 106 planning obligations in an attempt to remove what was considered to be a disproportionate burden imposed on small scale developers and self-build developments. Hence, for residential property development sites of 10 units or less (and with a maximum combined gross floor space of 1000 square metres), policy was changed so that affordable housing contributions were not to be sought. In designated rural areas, authorities were […]

Why landlords should really think about securing a release

The recent case of Reeves & Downing v Sandhu (2015) Ch D 13/01/2015 demonstrates why it really is a good idea for a landlord to seek a release from further liability to its tenant where the reversion is transferred.

In this case, the tenants sued the defendant, their original landlord, for losses arising out of a fire and a failure by the landlord to insure the demised premises in accordance with the obligation to do so in the lease. The tenants obtained judgment by default against their original landlord and petitioned for his bankruptcy. At first, the landlord successfully applied to […]

SDLT – the devolved tax

As from 1 April 2015, the commencement of the Land and Buildings Transaction Tax (Scotland) Act 2013 means that Scottish land transactions are no longer within the scope of Stamp Duty Land Tax and will instead be subject to a new land an buildings transaction tax (LBTT). SDLT will, in due course, become a fully devolved tax since Wales is eventually heading in the same direction. Section 16 of the Wales Act 2014 will dis-apply stamp duty land tax in Wales on a date to be appointed by the Treasury.

While only a small number of lawyers in England and Wales […]

Reliance upon a Professional Consultant’s Certificate in new-builds

What is the usefulness to a buyer of the type of Professional Consultant’s Certificate in new-build conveyancing referred to in the CML Handbook? The case of Hunt & Ors v Optima (Cambridge) Ltd & Ors [2014] EWCA Civ 714 relates to an action brought by eight purchasers against Optima, the developer of a block of flats, and Strutt & Parker (S&P) who were engaged by the developer to issue architects’ certificates to purchasers of flats in relation to the construction work. It was alleged that the building works carried out by Optima were defective, and that S&P had carried out […]

No movement on chancel repair liability

A private members’ bill was been introduced into parliament last year – The Chancel Repairs Bill 2014 (HL Bill No.38) to attempt an abolition of chancel repair liability. Introduced into the House of Lords, its first reading took place on 16 July. It is described as a Bill to make provision for ending the liability of lay rectors for the repair of chancels. It applies only to England only. Its provisions are brief. The main operative clause states that: “No person shall after the commencement of this Act be liable as lay rector for the repair of the chancel of any church […]

A contracting purchaser has no capacity to create a proprietary right.

The Supreme Court judgment in Scott v Southern Pacific Mortgages Ltd & Ors [2014] UKSC 52 relates to a residential property sale and lease back (equity release) scheme that went badly wrong for the owners of various properties in the North East. The finding of the Supreme Court confirms how badly wrong the scheme went. However, the reasoning given by the Court raises issues for transactions beyond those in this case.

In order to obtain a release from mortgage debt, each owner had sold his/her property to a nominee appointed by North East Property Buyers Ltd (NEPB) on the strength of […]

Liability under professional consultants’ certificates requires reliance

The case of Hunt & Ors v Optima (Cambridge) Ltd & Ors [2014] EWCA Civ 714 involves claims by eight purchasers against Optima, the developer of a block of flats, and Strutt & Parker (S&P) who were engaged by the developer to issue architects’ certificates to purchasers of flats in relation to the construction work. It was alleged that the building works carried out by Optima were defective, and that S&P had carried out a negligent inspection of the building works and had therefore negligently issued architects’ certificates. The claimants alleged that S&P owed them a duty of care arising out […]

Group assignments and the “repeat” parent company guarantee

Since the Court of Appeal’s decision in K/S Victoria Street v House of Fraser (Stores Management) Ltd [2011] EWCA Civ 904, concerns have existed over those post-1995 Act leases (and there are many) in respect of which a group assignment clause had been included to provide an element of freedom to assign the lease within the original tenant’s group of companies, provided the parent body guarantor of the original tenant committed to a repeated parent body guarantee in respect of all assignees within the group.

In the House of Fraser case, the Court of Appeal had confirmed that where, in relation […]

Summer 2014 property law case reviews

CPI subscribers can read case reviews in relation to the following recent important property cases, all of which will be fully covered in the next monthly issue of the CPI Update:

Hicks v 89 Holland Park (Management) Ltd (2014) Ch D (18 July 2014);

Youssefi v Mussellwhite [2014] EWCA Civ 885 (2 July 2014);

Schroder Exempt Property Unit Trust & Anor v Birmingham City Council [2014] EWHC 2207 (Admin) (10 July 2014);

Hirtenstein & Anor v Hill Dickinson LLP [2014] EWHC 2711 (Comm) (31 July 2014) (not property law, but still relevant);

CLP Holding Company Ltd v Singh & Anor [2014] EWCA Civ 1103 (31 […]

Restraining possible breaches of covenant by injunction

How willing are the courts to order an interim injunction to restrain a possible breach of a restrictive covenant? Hicks v 89 Holland Park (Management) Ltd (2014) Ch D 18 July involved an application for a declaration that approvals under certain covenants had been unreasonably withheld by 89 Holland Park (Management) Ltd, and a counter application by the management company for an interim injunction to restrain the applicant from applying for planning permission in the first place.

The case is the second piece of reported litigation between its protagonists. In 89 Holland Park (Management) Ltd & Ors v Hicks [2013] EWHC […]

Is your lease user covenant restrictive or positive?

The case of Youssefi v Mussellwhite [2014] EWCA Civ 885 appears to be little more than an opposed business lease renewal dispute involving various fault grounds under section 30(1) of the Landlord and Tenant Act 1954. However, there are one or two other interesting features to the case – most notably the interpretation of the lease user covenant.

Facts. 

The landlord opposed the tenant’s lease renewal application on the basis of grounds (a), (b) and (c) under section 30(1) LTA 1954. Ground (a) deals with disrepair, ground (b) deals with persistent delays in paying rent, and ground (c) deals with other substantial breaches […]

Who is liable for business rates after a lease is disclaimed?

The case of Schroder Exempt Property Unit Trust v Birmingham City Council [2014] EWHC 2207 (Admin) examines the liability of a freehold reversioner (i.e. owner of the hereditament) for payment of business rates after disclaimer of a lease of the property.

The Schroder Exempt Property Unit Trust (“SEPUT”) was the freehold owner of property in Birmingham. The property was subject to a lease, originally granted to Woodward Foodservice Limited (WFL), but subsequently assigned to WF Group Limited. The assignee had gone into liquidation, and its liquidator had disclaimed the lease. The effect of the disclaimer had been to determine the lease. […]

Limiting a firm’s liability to £3m in standard terms of business – possibly void under UCTA 1977?

How clearly do you bring to the attention of your client your standard terms of business, a term of which seeks to limit your firm’s liability in negligence liability to a liability cap (e.g. £3m)? See Michael Hirtenstein v Hill Dickinson LLP [2014] EWHC 2711 (Comm). 

Michael Hirtenstein v Hill Dickinson LLP [2014] EWHC 2711 (Comm) is a case which related to alleged negligent advice given by the defendant law firm in connection with the acquisition of a yacht. The allegation of negligence centred upon whether the firm, using the standard form of memorandum of agreement approved by the Mediterranean Yacht Brokers […]

Have you expressed the purchase price to be payable “exclusive of VAT”?

CLP Holding Company Ltd v Singh & Kaur [2014] EWCA Civ 1103 shows the dangers in using a standard pre-printed form of contract and relying upon standard conditions of sale to prevail over the other conditions of the contract – in this case, as regards the VAT status of the transaction.

In this case, the claimant, CLP Holding, was selling property for £130,000 in respect of which it had exercised the VAT option to tax. As it had opted to tax, VAT was therefore payable in respect of the purchase price. In late August 2006, the sale was completed without payment […]

There does appear to be some element of “retrospective” effect to rectification of the register

Despite the forward looking language of Schedule 4 of the Land Registration Act 2002, a recent Court of Appeal decision shows us that there is some degree of “retrospective” effect to a rectification of the register under the Land Registration Act 2002 in the way that the Act changes “for the future” the priority of interests affecting a title. For students of land registration law and practice, Gold Harp Properties Ltd v Macleod & Others [2014] EWCA Civ 1084 merits a detailed inspection.  It provides us with a Court of Appeal level opinion on what was thought to be the “prospective” effect of […]

Liability for business rates following a lease disclaimer

Who is liable for business rates after a lease has been disclaimed? Despite a valiant attempt by the landlord in Schroder Exempt Property Unit Trust & Anor v Birmingham City Council [2014] EWHC 2207 (Admin) to persuade the court to the contrary view, the effect of a disclaimer of a lease by a liquidator is to end the lease, so that the landlord’s reversion is accelerated, the landlord becomes the person entitled to immediate possession, and is therefore the person liable for business rates.

The fact that a former tenant remains liable for rent after disclaimer under the terms of an […]

The new Land Registry practice on original and certified copy documents

From 30 June 2014, the Land Registry has stopped requiring  original documents to be sent to it when applying by post to change the register of a registered property. The Land Registry only requires certified copies of deeds or documents to be sent in with Land Registry application forms. The Land Registry’s prescribed forms have been altered so that margin notes now make this change of practice clear:

“We only need certified copies of deeds or documents you send to us with Land Registry application forms. Once we have made a copy of the documents you send to us, they will […]

June CPI Update published

The June 2014 issue of the CPI Update is published today, dealing with cases including Marks And Spencer Plc v BNP Paribas Securities Services, Friends Life Management Services v A&A Express Building Ltd, Best v The Chief Land Registrar and many more. For more details, click on CPI Issue 124 – June 2014.