Latest Chambers News
-Landlord and Tenant Act 1954, Section 34 Rent and Comparables
Clear Call Limited v Central London Investments Limited
(High Court, Queens Bench, 7th November 2014): this was an appeal in relation to rent payable under a renewal tenancy under section 34 of the 1954 Act; treatment of comparables at trial and reliability of comparables. The appeal was dismissed. Elizabeth Fitzgerald appeared for the successful landlord respondent.
- Planning, Predetermination/Bias, Treatment of Heritage Assets
Jonathan Karas QC appeared for the interested party in R (Carnegie) v London Borough of Ealing [2014] EWHC 3807 (Admin), which was a challenge by the Claimant to the grant of planning permission to redevelop Oaks Shopping Centre, Acton. The Claimant sought to argue that a substituted member of the planning committee had approached the question of whether permission should be granted with a closed mind, and that an improper approach was taken by the planning committee in relation to listed buildings. Patterson J (agreeing with the Defendant and the Interested Party) rejected those grounds and considered (a) the principles in relation to allegations of bias/predetermination and (b) considered how heritage assets should be taken into account.
The case raises one important point of practice. The Claimant had tried to avoid the requirements of the new 6 week time limit (under the amended CPR r54.5(5)) for planning judicial reviews by issuing proceedings within that period, but then stating that the statement of facts and grounds required by the rules would follow. The court deprecated this practice but was willing to extend time for service of the facts and grounds because the protocol letter stating the grounds was appended to the claim form and there was no prejudice to the other parties.
- Enfranchisement, Competent Landlord, Agreeing Terms, Notice of Representation, Human Rights
In Howard de Walden Estates Ltd v Accordway Ltd and Kateb [2014] UKUT 0486 (LC), the Upper Tribunal decided a point of statutory construction under the Leasehold Reform, Housing and Urban Development Act 1993 which had previously led to conflicting LVT decisions. It held that the freeholder, the competent landlord, was able to agree all the terms of acquisition with the lessee of the flat, even after a notice of separate representation had been served by the intermediate lessee. The intermediate lessee’s remedy was to claim a breach of statutory duty by the competent landlord, to which the latter has a defence if he acts in good faith and with reasonable care and diligence. The Tribunal also rejected the intermediate landlord’s arguments based on the Human Rights Act.
Anthony Radevsky acted for the successful appellant.
- First Tier Tribunal Practice and Procedure, Costs.
Gary Cowen has acted in the first known consideration of the new costs jurisdiction of the First Tier Tribunal to award costs where a party has acted unreasonably in bringing or defending or conducting proceedings in a residential property case (under rule 13 of the The Tribunal Procedure (First-tier Tribunal) (Property Chamber)
Rules 2013 S.I. 2013 No. 1169, which may be consulted here. In 5 Whetherby Gardens Freehold Limited v Trans World Land Company Limited (LON/00AW/OCE/2013/0142), the Respondent landlord had called evidence as to valuation (including development value), which was not accepted following cross examination. The FTT reiterated the important principle that a party to litigation could not absolve itself of responsibility for its case by laying the blame on its chosen expert. However, the FTT did decide that the threshold for what was unreasonable remained that of the Commonhold and Leasehold Reform Act 2002, and that, therefore, it had not been unreasonable to call the evidence of a suitably qualified expert, though it had been a “close run thing”.
- Land Registration; Rectification
Charles Harpum was an invited speaker at the Cambridge Centre for Property Law on 21st November 2014. He delivered a paper entitled “Can rectification be retrospective” which will be added to the Chambers “Articles” section (accessible HERE) shortly. The paper considers the recent Court of Appeal decision in Gold Harp Properties Ltd v Macleod & Ors [2014] EWCA Civ 1084, in which the Court of Appeal considered extensively the textbook authority on the question , including the Megarry and Wade (of which Charles Harpum has been author since the sixth edition), and the Law Commission materials (which were produced whilst Charles Harpum was responsible Law Commissioner for the Property and Trusts Team which produced the Land Registration Act 2002).
- Jurisdiction – relief from forfeiture, variation of consent orders
Joe Ollech appeared for the successful landlord in proceedings to enforce the forfeiture of a lease. The Crooked House in Windsor is a 16th century Grade II listed building, and something of a local landmark. The landlord forfeited a 25 year commercial lease of the building by the issue and service of proceedings in September 2013. Terms of relief were agreed between the parties and recorded in a consent order in June 2014. The landlord enforced the forfeiture of the lease and re-entered the premises one day after time expired for the tenant to comply with the conditions agreed in a consent order.
On the tenant’s application for further relief and/or an extension of time to comply with the terms of the consent order the court held that (a) despite the wording of the consent order that upon default the “Claimant be at liberty to take possession”, that was nevertheless a sufficient order for possession for the purposes of Billson v Residential Apartments Ltd [1992] 1 AC 494 (HL), and/or Rogers v Rice [1892] 2 Ch 170; and (b) that although the court had jurisdiction to alter time limits for compliance with an order (CPR 3.1(2)(a)), where the order was made by consent, particularly where it was more than the mere “bowing of the head” to a timetable, unusual or exceptional circumstances were required before it would do so - Ropac v Inntrepeneur Pub Co (CPC) Ltd [2001] L&TR 10, Fivecourts Management Ltd v JR Leisure Development Co Ltd (2001) 81 P&CR 22 applied. There being no exceptional circumstances in this case, and further given the recent Mitchell/Denton guidance on relief from sanctions, it was not appropriate to extend time and in effect give the tenant retrospective relief from sanctions.
-Service Charges, Legal Costs, Construction of Service Charge Clauses, Meaning of “Repair/Maintain”
Assethold Ltd v Watts [2014] UKUT 0537 (LC) Philip Sissons appeared for the successful Appellant in a case concerning service charges and the recovery of legal costs. The appeal re-affirmed that there were no special rules of construction applying to service charge provisions meaning that they were to be construed against the landlord in the event of any ambiguity. The Deputy President considered the recent decisions in Arnold v Britton [2013] EWCA Civ 902 and Francis v Philips [2014] EWCA Civ 1395 to that effect. The Upper Tribunal considered the meaning of a covenant which required the covenantor to “maintain” and to “repair”, and the important question of whether in order for a landlord to include legal costs as part of the sums comprising a service charge, it was necessary for specific words to appear. It was found that legal costs incurred in pursuing litigation against a third party were, in the circumstances, recoverable under general words regarding the cost of management of a building.
- New Judicial Appointment: Janet Bignell Becomes Specialist Chancery Recorder
Chambers is pleased to announce that Janet Bignell has been appointed to sit as a specialist Chancery Recorder in the Central London Chancery list, having already been appointed as a Recorder in the Crown Court in 2009. She also became a Fellow of the Chartered Institute of Arbitrators (FCIArb) this year and was appointed as a member of the President’s Property Panel.
- Easements by prescription
Guy Fetherstonhaugh QC acted for the Appellants and Caroline Shea acted for the Respondents in Winterburn v Bennett in the Upper Tribunal (Tax and Chancery Chamber), a case concerning the acquisition of prescriptive rights (of access and to park) over a car park. The decision is of importance (not least because permission to appeal to the Court of Appeal was granted), in that it raises issues which affect owners of land of all types, and may have far reaching practical effects on the way in which the acquisition of easements by prescription can be prevented.
The Upper Tribunal’s decision (given by HH Judge Purle QC, sitting as a Judge of the High Court) was concerned with two issues. The first was whether use of the servient tenement by customers of the dominant tenement, in circumstances where such use was neither expressly condoned nor controlled by the dominant owner, was user on which the dominant owner could rely to establish prescriptive rights in favour of the dominant land. The Judge determined this point against the Appellants. The second issue was whether a clearly visible sign to the effect that the car park was private, which had been displayed throughout the prescriptive period, but which had not been enforced in anything other than an occasional and desultory way, was sufficient to render the use contentious, such that the dominant owner was unable to say that it was use as of right. The Judge allowed the appeal on this point, albeit giving permission to appeal.
- Article 8(2) of the European Convention on Human Rights
The Supreme Court has just granted permission to appeal in McDonald v McDonald [2014] EWCA Civ 1049; [2014] 2 P. & C.R. 20. This will be one of the most significant cases of 2015. The Court of Appeal’s decision has already attracted a huge amount of attention. This appeal will give the Supreme Court the opportunity to have its own say about whether Article 8(2) of the European Convention on Human Rights has any application in the context of possession proceedings brought by a private landlord. In so doing, the Court will be able to finally settle a debate which has raged since the Human Rights Act 1998 was brought into force about the ‘horizontal effect’ of those rights. The Appellant is also seeking a ‘protective costs order’ (legal aid funding having been withdrawn). In the past such orders have been limited to public and environmental law cases and are, even in that context, regarded as exceptional. However, the recent and well publicised cuts to public funding, means that such applications are likely to become more and more commonplace. This appeal will give the Supreme Court the opportunity to offer much needed guidance on the principles to be applied in such cases. The appeal is therefore likely to be no less influential from a procedural perspective than it is in terms of the substantive law.
Stephen Jourdan QC and Ciara Fairley appear on behalf of the Respondents.
- Service Charges; Insurance
Stewart v Target Performance Ltd - First Tier Tribunal, Property Chamber
Joe Ollech appeared for the successful defendant landlord in an application brought by a tenant under a long lease, challenging the amounts charged for insurance premiums. The lease required the landlord to "insure and keep insured...the Building against loss or damage by fire and such other risks (if any) as the Lessor thinks fit in some insurance office of repute in the full value thereof..". The landlord had insured the premises many years earlier with an insurance office of repute, but had not sought to negotiate new terms year on year. The premiums rose over time, and the tenant had undertaken extensive market research in an effort to demonstrate that "loyalty doesn't pay". He had also sought to obtain a number of comparable quotes at lower prices.
The Tribunal considered the landlord's discretion under the terms of the lease to place insurance "in some insurance office of repute" and held that the charges were reasonably incurred. Forcelux Ltd v Sweetman [2001] 1 EGLR 173, Havenridge Ltd v Boston Dyers Ltd [1994] 2 EGLR 73, and Avon Estates Ltd v Sinclair Gardens Investments (Kensington) Ltd [2013] UKUT 0264 (LC) were considered and applied. The comparable quotes were also held not to be "like for like" in any event. The landlord was required to give the tenant credit for a commission that it received from the insurers and which it disclosed shortly before the hearing.
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