Latest Chambers News to 30th August 2014
- Restrictive Covenants; Injunctions
Hicks v 89 Holland Park (Management) Limited (Lawtel 18/07/14) This is the latest decision in the 89 Holland Park litigation (with the earlier decision reported at [2013] EWHC 391 (Ch)). The case concerns a restrictive covenant over what was formerly garden land which regulate development. The High Court was, on this occasion, asked to consider whether or not to grant an interim injunction to restrain the making of a planning application. Agreeing with the Defendant, the High Court concluded that, on the basis of undertakings given, an injunction was not appropriate. Nicholas Dowding QC and Mark Sefton appeared for the Defendants.
- Service Charges
Kester Lees appeared in Re Kennilworth House and Warwick House, Castle Court, Cardiff LVT/0006/04/13, a residential service charge dispute worth £1.5m, on behalf of the successful landlord. A number of issues were raised by the tenants in relation to the construction of the lease provisions and the level of charges, including the valuation of managing agents’ fees. The First Tier Tribunal concluded that the building was positioned at the top end of the market, and that the charges (with the exception of £4,500) were entirely justified.
- Assured Shorthold Tenancies
The Supreme Court refused leave to appeal on 24th July 2014 in the case of Spencer v Taylor [2013] EWCA Civ 1600. The judgment is available here. The case decided several points about the operation of section 21 of the Housing Act 1988, chiefly (a) that a fixed term assured shorthold tenancy that had been converted to a periodic one could still be terminated by notice under section 21(1), and the additional hoops in section 21(4) did not need to be complied with, and (b) that a saving provision the application of which yielded a correct date under section 21(4) was effective where the first specified date was incorrect. Oliver Radley-Gardner appeared in the Court of Appeal for the successful respondent.
- Possession Proceedings and Human Rights
Stephanie Tozer has appeared in Rathlin and ots v Crane and ots on 29th July 2014 in possession proceedings on behalf of private land owners against trespassers. The case is significant because it follows on from the very recent decision in McDonald v McDonald (further information here), which concerned private landlords proceeding against tenants. In McDonald, the Court of Appeal stated that Article 8 defences were not available in landlord/tenant disputes where both were private parties. Rathlin and ots v Crane and ots is therefore the first consideration of the same question in the context of trespassers, post-McDonald. Birss J granted a possession order under CPR 55 in face of protestors seeking to assert various Convention rights. He did so on the basis that McDonald meant that the Court did not need to consider these matters in a claim brought by a private landowner (and their rights were to a large extent not being infringed by the orders sought in any event).
- Lease Extensions and Valuation
In Caddy Ocean Ltd v Bloomberg (First-tier Tribunal (Property Chamber), 28 July 2014) Anthony Radevsky acted for the successful landlords in two new lease claims concerning flats in a building in Hampstead, under the Leasehold Reform, Housing and Urban Development Act 1993. The Tribunal accepted all the landlords’ evidence and submissions. In doing so two points were decided which are of more general interest. First, the Tribunal rejected an argument from the lessees that the value of the landlords’ interest should be reduced by 50% because it should be assumed to be a flying freehold in a single flat. Secondly the Tribunal rejected the lessees’ valuer’s approach to relativity, which involved constructing a mathematical model to produce so-called “principled relativity”.
- Trusts of Land
Nathaniel Duckworth appeared for the successful commercial creditor in Fred Perry (Holdings) Ltd v (1) Ivan Genis (2) Ayelet Haim Genis (LTL 07/08/14). The case considered the priority to be accorded to commercial creditors in the mix of the statutory factors contained in section 15 of the Trusts of Land and Appointment of Trustees Act 1996. The Court determined that commercial debts ranked more highly than others as a matter of authority, and an order for sale was made.
- Adverse possession, highways, illegality
Oliver Radley-Gardner appeared for the successful applicant in TFL v Al-Amini (REF/2013/0655), a case concerning adverse possession by long term parking. The application was to close the putative squatter's possessory title, said to have been acquired by adverse possession. The Property Chamber held (1) that on the facts, the parking was an insufficient act of possession to amount to exclusive possession, (2) that the land was highway land, and that title to a highway maintainable at public expense could not be extinguished by adverse possession, and (3) that the Respondent had neither completed a thirty year, nor a twelve year, period of adverse possession, the land having been Crown land for a period of time. In so deciding, consideration was given to R v Land Registry (ex parte Smith) and the Highways Act 1980, section 263.
- Easements, Rights of Way, Agricultural Land
Edward Cole appeared for the successful party in Page v Convoy (21st Aug 2014, Birmingham County Court). The case concerned a right of way over servient land adjoining the dominant, agricultural tenement. The issues were (a) the question of the extent of the servient land over which the right of way could be exercised, and (b) the question of whether the dominant owner was entitled to access the contiguous dominant land at any point along the length of the right of way.
- Service Charges, Section 20C Applications, Legal Costs
Edward Peters appeared appeared for the successful Appellant landlord in the recent Upper Tribunal decision in Daejan Properties Ltd v Griffin & Anor [2014] UKUT 206, which (in addition to the “historic neglect” problem) also gave guidance on the recoverability of legal costs from tenants, and on the discretion given to tribunals to refuse such costs under section 20C (Limitation of Service Charges, Costs of Proceedings) of the Landlord and Tenant Act 1985
-Leasehold Reform Act 1967
In The Church Commissioners for England v Establissement Enterprise Dupont (First-tier Tribunal (Property Chamber), 30 July 2014), Anthony Radevsky acted for the successful freeholder in a dispute under the Leasehold Reform Act 1967 concerning a valuable house near Regent’s Park. In accepting the freeholder’s arguments, the Tribunal ruled that, because the lease which had just over 5 years unexpired, the price should be assessed on a similar basis to one where the lease was less than 5 years, where there was Upper Tribunal guidance. Accordingly the deferment rate was assessed at 2.25%, and the value of the existing lease was valued by capitalising the net rental income.
Back to news listing
