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September 2010On this page you will find summaries of the material contained in this month's update pages. For the full update use the contents box on the side or use the drop down menu. Full members who wish to download the full update as a newsletter in a pdf or word format should go to the
download page. The next will be early in October 2010.
Gary Webber7 September 2010
Boundaries and adverse possessionDetermining the boundary: Where a conveyance plan is not clear the court should have regard to extrinsic evidence about the physical features of the site.
More...Hedge and ditch presumption: The judge at first instance had misapplied the hedge and ditch presumption in a boundary dispute by failing to determine when and how the ditch had come into existence, and whether it had been created before or after the hedge.
More...Business lease renewalA tenant cannot apply for summary judgment of its application for a new lease where the landlord seeks to oppose on ground (f) of s30(1) - the redevelopment ground.
More...Landlord and tenant (general)Insolvency: The High Court came to the conclusion that a CVA unfairly prejudiced the landlord. It therefore used its powers under s6 of the Insolvency Act 1986 to revoke the arrangement.
More...Long leasesLeasehold enfranchisement: In these conjoined appeals the Court of Appeal revisited two of the most lively issues under the Leasehold Reform 1967 Act namely: (1) when is a house “designed or adapted for living in” and (2) what is a “house . . . reasonably so called”. These issues have become important in recent years largely as a result of the removal of the residence requirement by the Commonhold and Leasehold Reform Act 2002. The issue at stake is whether large numbers of buildings which were unquestionably built as houses qualify under the 1967 Act notwithstanding that (sometimes substantial) parts are no longer used for residential purposes. Answer: Yes. As a consequence many properties which would not previously have qualified will now do so.
More...Meaning of "self-contained part of a building: An initial notice under s13 of the 1993 Act does not need to specify the smallest self-contained part of a building.
More...Deferment rate: This an example of a case where the Upper Tribunal sanctioned a departure from the standard deferment rate set in
Sportelli. The Upper Tribunal applied a deferment rate of 5.5% which was justified on the basis of the increased management required of a house in multiple occupation (+ 0.25%) and of a long period of low growth rates in respect of such buildings (+ 0.5%). The Tribunal also considered how deductions on account of restrictive covenants and statutory tenancies should be dealt with.
More...MortgagesLimited protection for unlawful tenants in occupation: See Property litigation below.
Nuisance and trespassTrespass: Ownership of property gives ownership of the strata beneath the surface of the land (in the absence of any express or implied alienation), and prima facie possession (which was a pre-condition for an action in trespass) of them. Installing pipelines was therefore a trespass. However, damages were low because a right could have been obtained by exercise of a statutory right and payment of statutory compensation.
More...PlanningDevelopment plan: An application under s113 of the Planning and Compulsory Purchase Act 2004 will rarely succeed unless the decision in question is irrational, made without regard to a material consideration or inadequately reasoned.
More...Enforcement: Section 285 of the Town and Country Planning Act 1990 (“the 1990 Act”) prevented the validity of an enforcement notice being challenged on any of the statutory grounds in proceedings before the court.
More...Enforcement: The European Court of Human Rights has held that a public authority’s failure to enforce a final judgment of a court infringed rights under Article 6 of the Convention.
More...EIA: Community law does not preclude the grant of retrospective planning permission for EIA development in the appropriate circumstances.
More...Planning permission: The first instance judge was held to be entitled to ascribe to a poorly drafted planning permission a sensible meaning that could be ascertained.
More...Planning permission: A local planning authority is entitled to consider the payment of compensation when making a decision to revoke or modify planning permission under s97 of the Town and Country Planning Act 1990.
More...Race impact assessment: In an important judgment, the Court of Appeal has affirmed the specific and detailed nature of the duty on a public authority to promote equality of opportunity and good relations between persons of different racial groups under s71(1) of the Race Relations Act 2000 when carrying out its functions.In an important judgment, the Court of Appeal has affirmed the specific and detailed nature of the duty on a public authority to promote equality of opportunity and good relations between persons of different racial groups under s71(1) of the Race Relations Act 2000 when carrying out its functions.
More...Policy and guidance: The most significant change on the planning policy landscape is the revocation of Regional Spatial Strategies by the Secretary of State on 6 July 2010.
More...Consultation: Planning permission for a wind farm was quashed for unlawful voting procedure and failure to consult English Heritage.
More...Property litigationLand Registry Adjudicator: Once the matter has been referred to adjudication, a notice of withdrawal of objection to the Registrar is of no effect.
More... Mortgage possesssion: New regulations bring into force the provisions giving unlawful tenants limited protection on 1 October.
More...Who has the right to claim possession?: Although the Mayor of London had no proprietary interest in the area of land over which he sought possession, he had sufficient control over it to enable to it to claim possession as well as an injunction against trespassers.
More...Possession claims - human rights: Public law defences should only be raised if they had real and obvious substance. Once a licence had been terminated and an order for possession made, it was for the occupier to establish that the possession order should be suspended and not for the owner of the land.
More...Residential tenanciesDuration of term: A tenancy agreement that was neither a fixed term, nor contained an ability to terminate on notice was void for uncertainty. Instead it operated as a common law periodic monthly tenancy (based upon the monthly payment of rent) that could be determined by an appropriate notice to quit free of fetters in the agreement.
More...Termination of joint tenancy - human rights: At common law, unless the terms of a tenancy agreement provide otherwise, a notice to quit given to one joint tenant without the concurrence of any other joint tenant is effective to determine a periodic tenancy (
LB of Hammersmith and Fulham v Monk [1992] 1 AC 478). Where this occurs, the right to occupy the premises as a tenant by the other joint tenant ceases and the landlord obtains the unqualified right to possession. In this case the court held that it is well established (at least at High Court level) that the rule in
Monk is compatible with Article 8 of the European Convention on Human Rights (
Wandsworth LBC v Dixon [2009] EWHC 27 (Admin) applied).
More...Secure tenancy - survivorship - succession: The rules of survivorship apply to secure tenancies. In this case this meant that the husband who was separated from his wife became the sole tenant after her death. However, as he was no longer living at the property the tenancy ceased to be secure. A notice to quit terminating the tenancy was therefore sufficient to remove their daughter who had continued to live there.
More...Secure tenancy - succession - foster child: A foster child is not a member of the tenant's family for the purposes of s113 of the Housing Act 1985. The foster son in this case was not therefore entitled to succeed to his foster mother's secure tenancy on her death under s87 of the 1985 Act.
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