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Monthly Update

October 2019

The October 2019 update is now available.

Topics this month:
  • Boundaries & Adverse Possession: Adverse Possession - Church vault
  • Co-ownership: Beneficial interest - Resulting trusts - Evidence
  • Mortgages: Legal charge - Effect of agreement to grant security over other property - equitable charge - Agreed notice; Insolvency - Guarantees - Security - Third party charges.
  • Property Litigation: Possession orders – Summary hearing – Points taken for the first time on appeal – Is it allowed?
  • Restrictive Covenant: Modification of covenant under s84 - Offices to residential dwellings
  • Solicitors Practice Points: Land Registry Practice changes; Shared Ownership Consultation


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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 October.

Gary Webber
14 October 2019

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Boundaries and Adverse Possession

Adverse possession - Church vault

King v The Benefice of Newburn in the Diocese of Newcastle
[2019] UKUT 176 (LC)

Title to the vault below a church building and churchyard had not been lost by virtue of the incumbents' adverse possession as they had never taken or been in possession of the vault, or evinced any intention to do so to the exclusion of the paper title owners.


Co-ownership

Resulting trusts – Beneficial interest – Evidence

Tahir v Faizi
[2019] EWHC 1627 (QB)

The appeal was dismissed. There was no basis to disturb the Judge’s findings as he found in favour of Mr Faizi, the Respondent, whilst showing a clear awareness of the deficiencies of Mr Faizi's evidence.


Mortgages

There are two cases this month:
  • Whether a legal charge over unspecified property takes effect as an agreement which can be protected by notice on the Land Register?
  • Whether a third-party charge provided by a guarantor for the indebtedness of a company is a security in respect of the debt for the purposes of the Insolvency Rules and Insolvency Act?

Effect of agreement to grant security over other property – Equitable charge – Agreed notice

Swift Advances Plc v Beharie
[2019] UKFTT 248 (PC)

A legal charge to secure other, unspecified but ascertainable property, is an agreement to create a legal charge which takes effect as an equitable charge and can be protected by a notice entered in the charges register of the other property.

Insolvency – Guarantees – Security – Third party charges

Promontoria (Chestnut) Ltd v Bell
[2019] EWHC 1581 (Ch)

Third party charges provided by guarantors for the indebtedness of a company are security in respect of the debt upon which statutory demands served on the guarantors were based, for the purposes of the Insolvency Rules and Insolvency Act.


Property litigation

Possession orders – Summary hearing – raising new points on appeal

Notting Hill Finance Limited v Sheikh
[2019] EWCA Civ 1337

The Court of Appeal considered the circumstances in which a point not raised during a summary possession hearing could be raised for the first time on appeal.


Restrictive covenants

Modification of covenant under s84 - Offices to residential dwellings

Shaviram Normandy Ltd v Basingstoke and Deane BC
[2019] UKUT 256 (LC)

The Upper Tribunal found that a restrictive covenant in a long headlease – limiting the use of a building to offices – did not secure practical benefits of substantial value or advantage to the landlord and therefore should be modified to allow residential use.


Solicitors Practice Points

Land Registry Practice changes

HMLR PG 8
(Execution of deeds by corporate bodies)

From 20 September 2019, HM Land Registry will not accept ‘signed as a deed’ as an acceptable form of wording in prescribed form deeds executed by companies and limited liability partnerships. Where a disposal is in a prescribed form that must be executed as a deed (such as Form TR1 or CH1) HMLR will require that the forms of execution set out in Schedule 9 to the Land Registration Rules 2003 are used. For example, schedule 9 requires the following form:
    “Executed as a deed by (name of company) acting by [a director and its secretary] [two directors]”
Practice guide 19A:
Restrictions and leasehold properties

This guide has been amended to now include the following:
    “The purpose of restrictions is to regulate registration, not regulate dispositions. So, where a restriction entered in the register requires consent or has an option requiring consent, the consent given in relation to the restriction must expressly consent to the registration of the disposition, not consent to the disposition”

This will necessitate a change to the wording on Certificates of Compliance issued by Management Companies & others

Shared Ownership Consultation

The government has published a consultation on a new national model for shared ownership.
The proposals are intended to:
  • Simplify staircasing. The proposals made include a proposal to reduce the minimum share bought by staircasing to 1%;
  • Amend the existing resale provisions. The proposal is to remove the existing arrangement and to and replace it with a time limited right of first refusal for the landlord to repurchase the home to re-sell as shared ownership.
  • Encourage lenders to provide mortgages at competitive prices; and
  • Encourage new entrants in the market to build and run shared ownership schemes.



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