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Monthly Update

June 2018

Topics this month:
  • Co-ownership: Land Registration - undue influence.
  • Long leases: Presumptions on extent of demise - airspace and subsoil; Service Charges - consultation process for qualifying works; Change of use - need for landlord’s consent to apply for planning permission - landlord’s refusal - reasonableness; Collective enfranchisement - appurtenant rights.
  • Mortgages: Mortgage possession claim - disabled borrower in arrears - unlawful discrimination; Mortgage litigation - claim for declaration as to entitlement to damages and set-off - limitation - summary judgment.
  • Property transactions: Fraud - solicitors’ liability for buyer’s failure to obtain title to property.
  • Public Access: Commons - local authorities’ powers and duties; Town or village greens - user “as of right”
  • Residential Tenancies: Landlord and Tenant residential – Deregulation Act 2015


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Co-ownership

Land Registration - Undue influence

Malik (deceased, by her Estate's court appointed representative, Malik) v Sheikh
[2018] EWHC 973 (Ch)

Summary: The trial judge should have concluded that a relationship of undue influence was to be presumed, arising from evidence of a relationship of influence between Mrs Malik and her sons and the disadvantageous nature of the transaction into which Mrs Malik entered for their benefit. Since the judge had also held that, if undue influence was presumed, S had failed to rebut it the TR1s transaction was proved to have been tainted by undue influence and had to be set aside. First-tier Tribunal had had power to transfer to the county court Mrs Malik's objection to the registration of a restriction against the registered titles to the properties, and the county court had had jurisdiction to hear the proceedings.


Long leases

Extent of demise - Airspace and subsoil

Gorst v Knight
[2018] EWHC 613 (Ch)

Summary: The presumption in favour of the demise of the airspace above a property did not automatically apply to the subterranean space beneath it. On its proper construction, the long lease of a maisonette did not demise the subsoil to the tenants.


Service Charges - Consultation Process for Qualifying Works

Reedbase Ltd v Fattal
[2018] EWCA Civ 840

Summary: When determining whether a landlord should repeat stage two of the consultation process concerning qualifying works under the Service Charges (Consultation Requirements) (England) Regulations 2003, the test was whether the tenants had been given sufficient information by the first set of estimates of the cost of proposed works, and if obtaining fresh estimates was likely to increase the protection afforded by the consultation process.


Change of Use - Consent to apply for planning permission required

Rotrust Nominees Ltd v Hautford Ltd
[2018] EWCA Civ 765

Summary: A landlord had acted unreasonably in refusing to consent to a tenant applying for planning permission for change of use to residential use of two floors of a six-storey building that it rented on a 100-year peppercorn lease. The user covenant permitted residential use, and the clause requiring the tenant to obtain the landlord's consent to planning applications was not intended to preclude the residential use of those floors in order to prevent the tenant from seeking to enfranchise under the Leasehold Reform Act 1967.


Collective Enfranchisement - Appurtenant rights - access to adjoining garden

Corp of Trinity House of Deptford Strond v 4-6 Trinity Church Square Freehold Ltd
[2018] EWCA Civ 764

Summary: A nominee purchaser acquiring the freehold interest of three adjoining London townhouses under collective enfranchisement legislation also obtained irrevocable rights of access to an adjoining garden retained by the freeholder, notwithstanding that the tenants had previously held only revocable rights to use it.


Mortgages

Mortgage possession claim - Disabled borrower in arrears - discrimination


Green v Southern Pacific Mortgage Ltd
[2018] EWCA Civ 854

Summary: A lender’s refusal to switch a repayment mortgage to interest-only did not amount to unlawful discrimination against a disabled borrower.


Mortgage litigation - Claim for declaration as to entitlement to damages and set-off – limitation – summary judgment

Woodeson v Credit Suisse (UK) Limited
[2018] EWCA Civ 1103

Summary: A bank was entitled to summary judgment against borrowers on their claim for declarations as to their entitlement to set-off sums in respect of claims for damages.


Property transactions

Fraud - Solicitors’ liability for buyer’s failure to obtain title to property

P&P Property Ltd v Owen White & Catlin LLP; Dreamvar (UK) Ltd v Mischon de Reya
(Conjoined appeals)
[2018] EWCA Civ 1082

Summary: The Court of Appeal has laid down principles relating to the liability of the seller’s solicitor and the buyer’s solicitor in cases where a fraudster purports to be the legal owner of a property and the buyer pays the purchase price without obtaining title to the property. In such a situation both solicitors will be in breach of trust, and the Court will not grant relief from liability under s 61 of the Trustee Act 1925.


Public access

Commons - Local authorities’ powers and duties

R (Alexander Keay Muir) v Wandsworth Borough Council & Smart Pre-Schools Limited
[2018] EWCA Civ 1035

Summary: The Court of Appeal dismissed an appeal against the upholding of a challenge to the lawfulness of a decision by Wandsworth Borough Council. The Council had decided to grant a 15-year lease of premises on Wandsworth Common to an interested party (Smart Pre-Schools Limited (‘the IP’), allowing it to operate a private nursery from the premises. The successful Claimant had expressed an interest in operating an educational and recreational facility for use by local maintained schools.


Town or village greens - User “as of right”

R (Cotham School) v Bristol City Council & David Mayer
[2018] EWHC 1022 (Admin)

Summary: Sir Wyn Williams, sitting as a Judge of the High Court, upheld a Bristol school’s challenge to the City Council’s registration of its playing fields as a TVG under s15 of the Commons Act 2006. The Council’s committee had unlawfully not followed the recommendation of the inspector it had appointed that the application for registration by the interested party, Mr Mayer (‘the IP’), should be dismissed.


Residential tenancies

Landlord and Tenant residential – Deregulation Act 2015

Walcott v Jones
His Honour Judge Hand QC sitting at the County Court at Central London.
(6 November 2017) Unreported

Summary: A periodic tenancy is “granted” when originally entered into, and not re-granted at the end of each period of the tenancy. As such the provisions of the Deregulation Act 2015 did not apply to the tenancy in this case, and a s21 notice that was served was valid despite non-compliance with the Act.


There will be no update in July. The next update will be in the middle of August.


Gary Webber
June 2018

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