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Monthly Update

June 2019

The June 2019 update is now available.

Topics this month:
  • Co-ownership: Beneficial interests – public policy – illegality – bankruptcy
  • Landlord and tenant (general): Construction – reservation in lease – right of entry
  • Mortgages: Family Court – property adjustment order – best endeavours to procure release from mortgage – order for sale
  • Planning: Extension of time for bringing judicial review
  • Property Litigation: Forfeiture – application to set aside order on basis that application for relief raises a “real prospect of success”; Relief from forfeiture – terms of relief – potential windfall to landlord; Undue influence – setting aside transfers of real property – summary judgment
  • Property Transactions: Contract – notice to complete/rescission – s2 Law of Property (Miscellaneous Provisions) Act 1989
  • Public Access: Town or village greens – suspension of right to apply to register where the land has potential for development
  • Residential tenancies: Assured shorthold tenancies – effect of Tenancy Fees Act 2019 – new s21 notice
  • Solicitors Practice Points: CQS – revised Practice Management Standards; New Build Warranties - CRL 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 July.

Gary Webber
12 June 2019

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Co-ownership

Beneficial interests – public policy – illegality – bankruptcy
Sarah Knight and Gordon Gregory v Richard Knight, Lesley Anne Knight and Megan Knight
[2019] EWHC 915 (Ch)

Successful claim for a declaration that the proceeds of sale of a property known as Close Court, ("Close Court"), amounting to £204,442 was held on trust by the first two defendants for the benefit of the claimants as administrators of the estate of the late Ralph Knight ("Stephen").


Landlord and Tenant (General)

Construction of lease – Reserved right of entry
Windsor-Clive (as Trustees of the St Fagans no.1 & no.2 Trusts) v Rees
(2019) EWHC 1008 (Ch)

In refusing injunctive relief to the landlord, the court concluded that rights reserved under a lease must be interpreted considering the wording of the lease as a whole, including the covenant for quiet enjoyment. The limitation of such reserved rights to “reasonable purposes” is to restrict exercise of such rights to the parties’ rights and obligations under the tenancy agreement and the landlord’s reversionary interest in the demised land.


Mortgages

Property adjustment order – divorce – transfer of property – best endeavours to procure release from mortgage – order for sale
Grandison v Joseph
[2019] EWHC 977 (Fam)

The High Court dismissed an appeal against an unless order in which the Family Court required a husband to use his best endeavours to procure the release of the wife from certain mortgages, or in default the properties would be sold.


Planning

Judicial review – extension of time – planning permission 5 years before – exceptional case
Thornton Hall Hotel Ltd, R (On the Application of) and Wirral Metropolitan Borough Council v Thornton Holdings Ltd
[2019] EWCA Civ 737

The High Court was correct to exercise its discretion to extend time and grant relief for a challenge to be brought by a claim for judicial review against a planning permission granted more than five and a half years before the claim was issued. It was common ground that the planning permission in question contained an error.


Property litigation

There are three cases this month:
  • Whether the existence of the right to relief from forfeiture amounts to a prospect of “success” at trial when considering an application under CPR r.39.3 to set aside a possession order?
  • Whether the Court would allow a claim by a commercial tenant for relief from forfeiture in respect of a retail unit?
  • Whether the Court would grant summary judgment for the benefit of a personal representative in a claim to set aside a property transfer procured by undue influence?

Relief from Forfeiture – application to set aside possession order – right to apply for relief = prospect of success?
Golding v Martin
[2019] EWCA Civ 446

The Court of Appeal determined whether the existence of the right to relief from forfeiture amounts to a prospect of “success” at trial when considering an application under CPR r.39.3 to set aside a possession order.


Relief from forfeiture – long lease with high value – difficult to find assignee – potential windfall to landlord
SHB Realisations Ltd v Cribbs Mall Nominee
[2019] EW Misc 11 (CC)

The County Court determined a claim by a commercial tenant for relief from forfeiture in respect of a retail unit where the lease was a 125-year term in respect of which a large premium had been paid. It had been difficult to find an assignee. The judge granted a time limited relief order to allow that to occur. There was criticism of the tenant’s application for relief in that it did not specify precisely what terms it was asking for. Simply asking for relief “on such terms as the court may think fit” is not good enough.


Notice to complete/rescission – Section 2 Law of Property (Miscellaneous Provisions) Act 1989
Oakley v Harper McKay Developments Limited
[2018] EWHC 3405 (Ch)

A contractual requirement for a seller to assign copyright in development plans and reports to the buyer is not a mere administrative formality and will prevent a seller from being ready willing and able to complete if the requirement is not complied with. Where, however, the buyer waives its right to such an assignment, this change does not need to satisfy s2 Law of Property (Miscellaneous Provisions) Act 1989.


Public access

Town or village greens – Suspension of right to apply to register where the land has potential for development
Wiltshire Council v Cooper Estates Strategic Land Ltd
[2019] EWCA Civ 840

The Court of Appeal has dismissed an appeal by Wiltshire Council against the order of the High Court Judge quashing the Council’s decision to register land at Royal Wootton Bassett as a town or village green under s15 Commons Act 2006.

The Court of Appeal upheld the judge’s decision that the application under s15 had not been validly made because the right to apply had been suspended by the adoption of a development plan document which identified the land for potential development, pursuant to s15C of, and paragraph 4 of Schedule 1A to, the 2006 Act.


Residential tenancies

Assured shortholds – New s21 notice – Tenancy Fees Act 2019
Tenancy Fees Act, s17
The Assured Tenancies and Agricultural Occupancies (Forms) (Amendment) Regulations 2019

The new Tenancy Fees Act prevents the service of a s21 notice where the prohibitions in the Act have not been complied with. A new form 6A - the prescribed form to use under s21 of the Housing Act 1988 – has been published to be used in respect of assured shorthold tenancies to reflect these changes. It came into force on 1 June 2019.


Solicitors Practice Points

There are two points this month:
  • Conveyancing Quality Scheme Revised Practice Management Standards
  • CRL New Home Warranty update

CQS

CQS published three-core values in November 2018 and the new Core Practice Management Standards on 6th February 2019.The revised standards came into effect on 1st May. The main thrust of the Standards is unchanged but there are some changes to policies, procedures and practices which will affect CQS firms and changes may be required prior to an application for accreditation or re-accreditation.

CRL New Home Warranty

CRL is one of several new home warranty providers. Many of its self-build and 10-year new home warranty products were underwritten by Alpha Insurance which is in liquidation.
The Financial Services Compensation Scheme (FSCS) will only cover 90% of any claim following the liquidation. A key point is that the FSCS protection does not extend to any new owner of the house so the seller will need to obtain fresh, usually more expensive insurance. Note also that some lenders do not accept retrospective warranties.


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