Property Law Library
Boundaries and adverse possession
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Pallant v Morgan
Yeomans Row v Cobbe
Assurance and reliance - Thorner
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Boundaries and party walls.
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Conveyancing and property development.
Long leases and enfranchisement.
Cases and articles
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Neighbour and boundary disputes
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Statutes and SI's
Property Law Library
October 2018 update
is now available. There is a new feature this month: Solicitors' Practice Points.
Topics this month:
Boundaries and Adverse Possession:
Boundary dispute - jurisdiction of FTT – s60 determination – Court or Tribunal - hedge
Right of Way – extinguishment: Right to park - lease or easement; Grant of easement - overreaching
Restriction in Lease - exercise of discretion – no pets policy: Lease rectification - unilateral mistake – inadvertent granting of lease for 2000 years: Commercial Leases - entire agreement clauses – implied terms; Prezzo Ltd v High Point Estates Ltd - Refusal of permission to appeal: Service charges – condition precedent - liability to pay balancing charge – accountant’s certificate – condition precedent?
Issue Estoppel - Abuse of process - NHBC cover - “no recoverable loss”: Planning - Section 106 Agreements - “Useful Purpose”
Discharge or modification – reasonable use: Discharge or modification – substantial value or advantage:
Solicitors Practice Points:
Insurance Distribution Directive: Compulsory publication of fees: VAT & Search Fees: CQS Training.
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With best wishes,
14 October 2018
Boundaries and adverse possession
Use of s60 where there is a dispute – FTT powers – Court or Tribunal – Difficulties in defining boundaries
Lowe v William Davis Ltd
 UKUT 206 (TCC)
In a case where there was an issue as to the location of the boundary and also an issue as to the accuracy of the application plan, the FTT had two options: decide all of the matters in dispute before it, or decide only the issue as to the accuracy of the application plan if that could be determined separately and dispose of the entire application. As it had jurisdiction to take either course, it was for the FTT to decide as a matter of case management which to take. Furthermore, the power under s. 110 of the Land Registration Act 2002 (“2002 Act”) allowed the FTT to decide “the matter” or to direct the parties to commence court proceedings to decide “the matter”; the FTT was not compelled to direct the parties to commence court proceedings. It had a discretion as to which course to adopt.
Right of Way - Extinguishment
Roberts v Parker
 EWHC 1206 (Ch)
The Court found that a right of way over the private road granted by a 1923 Conveyance was extinguished by operation of law by a 1950 Conveyance. However, a later Conveyance dated 1968 could be construed so that the relevant land enjoyed a full right of way to the private road.
Grant of Right to park - Lease or Easement?
De La Cuona v Big Apple Marketing
 EWHC 3783 (Ch)
On its proper construction a deed provided for the grant of an easement to park despite being called a “lease”. Applying the test laid out in Batchelor v Marlow, the deed was effective to grant an easement, because the grant of the parking right did not render the grantor’s ownership of the land illusory.
Grant of Easement - Overreaching
Baker v Craggs
 EWCA Civ 1126
The grant of an easement was not capable of engaging the overreaching provisions in s2(1) LPA 1925 because it was not a conveyance to a purchaser of “a legal estate in land” within the meaning of that section.
Restriction in lease - Exercise of discretion – no pets policy
Victory Place Management Co Ltd v Kuehn
 HLR 26
A general policy not to allow flat owners to keep pets save in special circumstances was not unreasonable or irrational. In taking into account the majority view of the lessees, the management company acted reasonably in refusing consent.
Lease rectification - Unilateral mistake – lease inadvertently granted for 2000 years!
Palo Alto Limited v Alnor Estates Limited
 UKUT 0231 (TCC)
The Upper Tribunal approved the First-Tier Tribunal’s decision to rectify leases which a landlord had inadvertently granted for a term of 2000 years. It was not necessary to make a finding of dishonesty before ordering rectification based on a mistake.
Commercial Leases - Entire agreement clauses – implied terms
Hipwell v Szurek
 EWCA Civ 674
An entire agreement clause did not prevent the court from implying a term to fill a perceived gap in the parties' repairing obligations.
Insurance - Refusal of permission to appeal
Prezzo Ltd v High Point Estates Ltd
2018 EWHC 1851 (TCC)
The decision at first instance was reported in the September 2018 edition of this publication. The Claimant has been refused permission to appeal by the Court of Appeal. In considering the request for Permission to Appeal Lord Justice Coulson confirmed that the starting point is the construction of the lease between the parties. Any extraneous facts or considerations of justice and policy beyond the words used in the Lease are irrelevant.
Service charges - Liability to pay balancing charge – accountant’s certificate – condition precedent?
Urban Splash Work Ltd v Ridgeway
 UKUT 32 (LC)
There is no general rule as to whether production of an accountant’s certificate is a condition precedent to payment of the final service charge balance. Each case will turn on the terms of its own agreement.
Issue estoppel - Abuse of process
Hodgson v National House Building Council
 EWHC 2226 (TCC)
This case creates no new law, but it provides a useful summary of the law regarding questions of "no recoverable loss", issue estoppel and abuse of process and is a rare decision on NHBC cover.
Assured shorthold tenancies - 1 October changes
A number of changes were made to assured shorthold tenancies by the Deregulation Act 2015, imposing certain obligations on landlords. Those changes initially only applied to tenancies created after 1 October
. This is a reminder that, since 1 October
, those requirements have applied to all assured shorthold tenancies whenever created (s41 of the 2015 Act).
Modification of Restrictive Covenant - Reasonable use – effect of planning permission - amount of compenation
Lamble v Buttaci
 UKUT 175 (LC)
The applicant sought to modify two existing restrictive covenants which prevented him from constructing a five-bedroom house, a garage and a summerhouse (recreational area) on his plot of land in semi-rural Surrey. The applicant’s neighbours objected to the development. Taking all factors into account, the Tribunal concluded that the practical benefits to the objectors were, largely, not of substantial value or advantage. Therefore, the Tribunal agreed to modify the covenants so as to permit the construction of the five-bedroom house and the garage. However, the Tribunal rejected the applicant’s proposal to build the summerhouse, as its intended site of construction would undermine the objectors’ sense of relative seclusion.
Modification of Restrictive Covenant - Covenant of substantial value or advantage – amount of compensation
Geall, Re Vine Cross
 UKUT 154 (LC)
The applicant sought to modify restrictive covenants which would prevent her converting her barn into a three-bedroom dwelling, in which she planned to reside. Taking all the factors into account, the Tribunal concluded the practical benefits of the restrictive covenants to the objectors were not of substantial value of advantage. Therefore, the Tribunal agreed to modify the covenants to permit the barn conversion, for which the applicant had obtained planning permission.
Solicitors' Practice Points
There are four points this month:
Implementation of the Insurance Distribution Directive
Compulsory publication of fees
VAT and search fees
Re-introduction of CQS Training requirements
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