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Monthly Update

July 2019

The July 2019 update is now available.

Topics this month:
  • Co-ownership: Proprietary estoppel – satisfying the equity – payment of a sum of money ordered – proportionality of the award made.
  • Easements: Prescriptive easements – intensification of use - no radical change.
  • Landlord and tenant (general): Licence to assign - guarantor liability.
  • Long Leases: Service Charges – natural justice – costs of running management companies; Service Charges – no sweeping up clause – no recovery for costs not mentioned.
  • Planning: Planning and village green registration – identification of land for potential development - trigger events.
  • Residential Tenancies: Local Authority – statutory obligations - security of tenure; Housing Association - Public Sector Equality Duty; Estoppel – residential possession proceedings.
  • Solicitors Practice Points: Rentcharges and Estate Rentcharges – lenders requirements.

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We are taking August off so the next update will be in the middle of September.

Have a lovely summer!

Gary Webber
12 July 2019



Proprietary estoppel – detrimental reliance – satisfying the equity – proportionality of the award

Habberfield v Habberfield
[2019] EWCA Civ 890

Proprietary estoppel case concerning a family run farming business. In satisfying the equity the court refused to transfer the farm to the claimant but instead ordered the payment of a cash sum. In deciding whether the award made by the judge was proportionate the relevant comparison was between the detriment and the remedy. Expectation is not determinative of the relief to be granted. The correct question to ask was whether the award was out of all proportion to the detriment.


Boundaries and easements - determining boundary where no original deed separating the properties - development and intensification of prescriptive easements

Stanning v Baldwin
[2019] EWHC 1350 (Ch)

Existing prescriptive rights of way benefitting one house were enough to accommodate the construction and subsequent use of four terraced houses. The proposed development was not a radical change of use nor was it shown that the change of use would lead to excessive user.

The Court determined the location of a boundary as well as the extent of a right of way and drainage rights, in respect of an adjoining Common, in the light of a party’s development proposal to replace a property with four terraced houses with underground car parking.

Landlord and Tenant (General)

Licence to Assign - Guarantor Liability

Co-operative Group Food Ltd v A & A Shah Properties Ltd
[2019] EWHC 941 (Ch)

The High Court held that a guarantee in a licence to assign took effect as a sub-guarantee and therefore the guarantor was not released from its liability for the continuing rent.

Long leases

There are two cases this month:
  • Whether it is a breach of natural justice for the first-tier tribunal to determine a question which was not before it.
  • Whether landlord could recover sums spent on removing rubbish from a car park when the schedule of services in the tenancy agreement made no mention of the car park
Service Charges - natural justice - management costs – costs of managing management company

Chiswick Village Residents Ltd v Southey
[2019] UKUT 148 (LC)

The Upper Tribunal held that it was a breach of natural justice when the First Tier Tribunal determined a question which was not before it and upon which no opportunity to adduce evidence had been given. Distinctions between the costs of managing tenant run companies and the costs of running the estate itself are likely to be illusory; the latter cannot be achieved without the former.

Service Charges - no sweeping up clause – no recovery of costs not mentioned

Wilcock v Guinness Partnership Ltd
[2019] UKUT 146 LC

The Respondent landlord could not recover sums spent on removing rubbish from the car park in circumstances in which there was a schedule of services to be provided in the tenancy agreement, which made no mention of the car park.


Planning and village green registration - Trigger events

Wiltshire Council v Cooper Estates Strategic Land Ltd
[2019] EWCA Civ 840

Inclusion within a settlement boundary in a development plan document was capable of identifying a parcel of land for “potential development” (amounting to a “trigger event”), thus precluding the right to apply for registration of the land as a town or village green. This issue relates to a change in the law in 2013 which has sought to bring a degree of harmony between the systems for village green registration and that for planning (giving primacy to the latter).

Residential tenancies

There are three cases this month:
  • Whether temporary accommodation given to an intentionally homeless person created a secure tenancy?
  • Whether the engagement of s.149 of the Equality Act 2010 required a judge to give directions in a claim for possession by a public sector landlord?
  • Whether a landlord was prevented by cause of action estoppel from obtaining a possession order in respect of a property in relation to which it already had a possession order?

Local Authority - statutory under the Children Act did not create a secure tenancy

Mohamed v Barnet London Borough Council
[2019] EWHC 1012 (QB)

Accommodation granted by a Local Authority pursuant to duties under the Children Act 1989 did not create a secure tenancy because the lease provided for vacant possession to be granted on written or verbal notice. The exemption from security of tenure under Schedule 1 para 6 (b) the Housing Act 1985 applied.

Housing Association - Public Sector Equality Duty

London and Quadrant Housing Trust v Patrick
[2019] EWHC 1263 (QB)

The engagement of s149 of the Equality Act 2010 did not require a judge to give directions in a claim for possession by a public sector landlord, on the facts the judge had been entitled to dispose of the claim summarily.

Estoppel - residential possession proceedings

Salix Homes v Mantato
[2019] EWCA Civ 445

A landlord was not prevented by cause of action estoppel from obtaining a possession order in respect of a property it already had a possession order in respect of.

Solicitors Practice Points

Rentcharges and Estate Rentcharges - Lenders Requirements

Barclays Bank, Nationwide Building Society & The Mortgage Works have made significant changes to their UKFML Handbook Part 2 entries. The requirements impose strict limits on accepting a property subject to a Rentcharge or Estate Rentcharge as an acceptable security.

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