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Monthly Update

October 2018

The 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
  • Easements: Right of Way – extinguishment: Right to park - lease or easement; Grant of easement - overreaching
  • Long Leases: 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?
  • Property Litigation: Issue Estoppel - Abuse of process - NHBC cover - “no recoverable loss”: Planning - Section 106 Agreements - “Useful Purpose”
  • Restrictive Covenants: 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.

This page contains brief summaries of this month's property law update - see below. If you subscribe to the detailed Monthly updates written by our expert team of highly experienced and knowledgable barristers, solicitors and legal commentators please Login and go to the Download page to download the full update.

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Mediation

If you would like to make arrangements for me to mediate a property dispute please contact my assistant Rosie Torre (rosie@thepropertymediators.co.uk). I am a member of the specialist property mediation service at The Property Mediators. My full mediator profile together with those of my mediator colleagues are here.

Training

For details of property law training courses run by Property Law UK editors go to in-house courses page of the website.

The next update will be in the middle of November.

With best wishes,

Gary Webber
14 October 2018

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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
[2018] UKUT 206 (TCC)

Summary

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.


Easements

Right of Way - Extinguishment

Roberts v Parker
[2018] EWHC 1206 (Ch)

Summary

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
[2017] EWHC 3783 (Ch)

Summary

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
[2018] EWCA Civ 1126

Summary

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.


Long leases

Restriction in lease - Exercise of discretion – no pets policy

Victory Place Management Co Ltd v Kuehn
[2018] HLR 26

Summary

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
[2018] UKUT 0231 (TCC)

Summary

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
[2018] EWCA Civ 674

Summary

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)

Summary

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
[2018] UKUT 32 (LC)

Summary

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.

Property litigation

Issue estoppel - Abuse of process

Hodgson v National House Building Council
[2018] EWHC 2226 (TCC)

Summary

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.


Residential tenancies

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 2015. This is a reminder that, since 1 October 2018, those requirements have applied to all assured shorthold tenancies whenever created (s41 of the 2015 Act).


Restrictive covenants

Modification of Restrictive Covenant - Reasonable use – effect of planning permission - amount of compenation

Lamble v Buttaci
[2018] UKUT 175 (LC)

Summary

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
[2018] UKUT 154 (LC)

Summary

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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