bulletin no 95 september 2012 hill & redman’s law of...

Hill & Redman’s Law ofLandlord and Tenant

Bulletin EditorNicholas Roberts, BA, LLM, PhD, Solicitor and Notary

PublicPrincipal Teaching Fellow, School of Law, University of

Reading

This Bulletin covers material available to 31 August 2012.

Filing Instructions: Please file immediately behind the Bulletins Guidecard inBinder 5. The Binder should now contain Bulletins 93 to 95.

DIVISION A: GENERAL LAW

Parking rights – whether part of the demise or grant ofeasements – implications for proposed developmentKettel v Bloomfold Ltd [2012] EWHC 1442 (Ch) is another case dealing withparking rights. The defendants proposed to build on the parking spacescurrently enjoyed by the claimants, offering them instead the right to parkelsewhere. The claimants argued that their leases granted them the spaces aspart of their demise, or alternatively an easement to park in their respectivespaces. They therefore sought an injunction to restrain the defendants frominterfering with those rights.

HHJ David Cooke, sitting as a judge of the Chancery Division, first held thatthe parking spaces did not form part of the demise to the claimants. Thewording of the lease (“demises to the tenant the Premises TOGETHER withthe rights …”) was not apposite to construe the right to park as part of thedemise. The right was an easement, even though the right was to use adesignated space: the same reasoning was adopted as in Virdi v Chana [2008]EWHC 2901, namely that the easement even of an exclusive right to parkwould not deprive the lessor of all reasonable use of the land. Whether theright to use a space formed part of the demise or was an easement waspotentially relevant here, as there was the possibility that the defendantsmight adopt an alternative scheme of development whereby the new buildingwas built out on a deck over the existing ground-level parking spaces. If thegrant was of an easement, such a scheme would not interfere with theclaimants’ rights.

Bulletin No 95 September 2012

HR: Bulletin No 95

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The defendants argued in the alternative that they had an implied right togrant the right to use an alternative parking space in lieu of the space thathad been designated in the lease. On the basis of established authority(Greenwich NHS Trust v London & Quadrant Housing Association [1998]1 WLR 1749) the judge rejected this proposition, and granted an injunctionto restrain interference with the parking rights. He rejected the defendants’proposal that he should grant damages in lieu of an injunction, as that wouldbe tantamount to allowing the defendants to appropriate the claimants’rights, but nevertheless assessed what the damages might have been, in casethe injunction should be discharged on appeal.

(Case noted at JHL, 2012, 15(5), D111.)

Variation of contract relating to land – whether termallegedly agreed orally was a collateral contractKeay and another v Morris Homes (West Midlands) Ltd [2012] EWCA Civ900 deals with the vexed issue of the scope of s 2 of the Law of Property(Miscellaneous Provisions) Act 1989 and how far a term may be treated aspart of a collateral agreement and thus not required to comply with s 2. Theparties had entered into what was clearly a land contract, and had thensought to vary it by entering into a supplemental agreement in writing. Theclaimants, K, alleged that an oral term of that agreement was that thedefendants would progress certain building works, and claimed damages ofsome £2.7m for breach. MHL denied any such agreement, and furtherasserted that, if there were such a term, it would be void for lack ofcompliance with s 2.

The decision of the CA is somewhat unsatisfactory in that the matter camebefore it after K had applied for summary judgment, or in the alternativestriking out of the defence, on the basis that it disclosed no reasonabledefence. HHJ Simon Baker QC, in the Birmingham District Registry (Ch D),had held that the point as to whether the oral term was part of a collateralcontract, or was part of the supplemental agreement itself (referred to in thejudgment as the ‘Grossman point’, after Grossman v Hooper [2001] EWCACiv 615), could not be determined on a summary application but would haveto go to trial; he further held that MHL’s contention that the supplementalagreement was void and had (following Tootal Clothing Ltd v GuineaProperties Ltd (1992) 64 P&CR 452 (CA)) no real prospect of succeeding attrial; and he made a declaration accordingly in favour of K. MHL appealedagainst the ruling on the Tootal point; and K cross-appealed on the Grossmanpoint.

On the Grossman point, the CA held that it was not possible for the judge atfirst instance or for the CA to decide the point on a summary application,and, refusing the cross-appeal, agreed that the matter would have to go totrial.

On the Tootal point, the judge had accepted K’s argument that the effect ofTootal, as reluctantly accepted by Lewison J in Kilcarne Holdings Ltd vTargetfollow (Birmingham) Ltd [2004] EWHC 2547 (Ch), was that once the


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‘land part’ of any contract had been completed, any terms of the contractwhich would not have fallen within s 2, LP(MP)A 1989 would automaticallybe enforceable. The CA rejected this interpretation of Tootal, althoughRimer LJ confessed (at [41]) to difficulty in clearly identifying what the trueratio was of Tootal. In any event, as well as refusing the cross-appeal, the CAallowed MHL’s appeal by deleting the declaration made to the effect that thedefence that the supplemental agreement was void had no prospect ofsucceeding at trial. The application for summary judgment was thus entirelydismissed, and the whole action would have to go to trial.

(Case noted at [2012] Comm Leases 1838–1841.)

Appointment of receiver – whether an agreement was alease or an agreement for a lease – whether specificperformance of agreement would be orderedBower Terrace Student Accommodation Ltd v Space Student Living Ltd [2012]EWHC 2206 (Ch) was an application for an interim injunction by thereceivers (under fixed charges) of the claimant company for injunctionsenabling them to assume responsibility for the letting of student accommo-dation flatlets. The defendants – who were an associated company of theclaimant company – claimed to be entitled to continue to manage theaccommodation by virtue of a ‘Management and Letting Agreement’. Theintention of the agreement was that the defendants would be able to continueto let and manage the properties even if the claimant company becameinsolvent. Foskett J rejected the contention that the agreement had this effect.The position was complicated in that two versions of the agreement existed,but it was clear that – in either form – the agreement could not amount to alegal lease as it exceeded three years and was not by deed. Neither could it bea valid agreement for a lease, so as to create an equitable lease: setting asidesome potential problems over its execution, no court would be prepared togrant specific performance of the agreement as (relying on Warmington vMiller [1973] QB 877 (CA)) to do so would put the claimant companies inbreach of the terms of the legal charges to the Bank, which had appointedthe receivers. Those charges contained the usual provisions prohibiting themortgagor from leasing the subject premises without the consent of theBank, and it was clear that consent would not be forthcoming. An interiminjunction was therefore granted to enable the receivers to take charge of theletting of the individual flatlets with a view to realising the blocks as goingconcerns.


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Assignment of sublease – interpretation of subleaseincorporating terms of headlease – whether consenthad been unreasonably delayed – effect of assignmentwithout consent – effect of non-registration – whetherlack of some notices under s 17, L&T(C)A 1995was relevantE.ON UK plc v Gilesports Ltd [2012] EWHC 2172 (Ch) raises several issues ofpotential interest. The claimant was the tenant of a unit in a shopping centre,and had granted a sublease to the defendant. The sublease was a briefdocument, which purported to incorporate, mutatis mutandis, the terms ofthe headlease into the sublease. The defendant used the premises for the saleof sports clothing and equipment; the defendant was a subsidiary of SportsDirect International plc (‘SD’). In March 2006 SD acquired OriginalShoe Co Ltd (‘OSC’) and in October 2006 OSC moved into occupation ofthe unit. It was entitled to do so under a clause in the headlease (incorporatedinto the sublease, for the reasons given) which allowed intra-group sharing ofoccupation.

In December 2007 SD contracted to sell OSC to JJB Sports plc (‘JJB’). AsOSC would no longer be able to share occupation under the exception forintra-group sharing, consent to assign the sublease was sought from the headlandlord, and, belatedly, from the claimant. Issues arose as to whether JJBwould be required to guarantee OSC’s liabilities under the sublease, but, inthe event, the transfer from the defendant to OSC was completed without theclaimant’s consent and knowledge. Negotiations for a licence to assignnevertheless continued as if the assignment had not taken place, whichproved abortive, as no guarantee from JJB was forthcoming. OSC then wentinto administration, and the claimant looked to the defendant for the rent;without prejudice to their contention that the defendant remained the tenant,the claimant also began to serve notices on the defendant under s 17,L&T(C)A 1995.

Four issues arose out of this factual matrix:

(1) There was a dispute as to whether the consent of the claimant wasrequired to the assignment of the sublease. Arnold J held that, as ashort point of construction of the sublease, it had incorporated therelevant provision of the headlease.

(2) The defendant then argued that, under s 1(3), LTA 1988, consent to theassignment should not be unreasonably delayed, and the claimant wasin breach of this. The court rejected this argument. First, the defendanthad sought licence only by email. This did not comply with the terms ofthe sublease, which incorporated s 196, LPA 1925. Time was notrunning against the claimant, and there was no estoppel by convention.Second, if the email application was sufficient, a reasonable time hadnot elapsed before the defendant went ahead with its assignment.Although the period was eleven days, that was not sufficient, in view of


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the complications, and it was also relevant that the Whitsun half-termbreak intervened, when it was known that certain key players would beon holiday. The familiar case law on this (Go West Ltd v Spigarolo[2003] EWCA Civ 17 and NCR Ltd v Riverland Portfolio (No 1) Ltd(No 2) [2005] EWCA Civ 312) was considered. The assignment was heldto be in breach of covenant, and thus an excluded assignment withins 11(1), L&T(C)A 1995.

(3) Although not registrable at the Land Registry when granted, by virtueof LRA 2002, s 4, the sublease became registrable when it was assigned.OSC did not register the transfer to it under s 6, so by virtue of s 7 aftertwo months the legal estate reverted to the defendant, which held it ontrust for OSC. The parties were agreed on this, but differed as to itseffect. The defendant argued that the transfer took effect as an equita-ble assignment within s 28(1), L&T(C)A 1995 and thus OSC becameliable on the tenant’s covenants by virtue of s 3(2)(a); the claimantcountered this by arguing that s 28(1) also includes an assignment byoperation of law, so the defendant would become liable again when thelegal estate reverted at the end of the two-month period. Arnold Jpreferred the claimant’s view on this. Although he accepted the argu-ment of counsel for the defendant that this was potentially unfair to thedefendant as it could not itself register the transfer, it could apply to theLand Registry for an extension of time, and to the court for an ordercompelling the transferee to effect registration.

(4) The final point involved s 17, L&T(C)A 1995. The defendant arguedthat some of the rent arrears had arisen too early in time to be coveredby the notice, but it followed from the judge’s decision on issue (3) thatthe defendant was liable as tenant, not as the former tenant.

ECHR – possession obtained from one joint tenantfollowing notice to quit given by the other – whetherdeclaration and compensation amounted to ‘justsatisfaction’Dixon v UK (App No 3468/10) [2012] ECHR 424 follows on from thedecision in McCann v UK (App No 19009/04) (2008) 47 EHRR 913. Thedomestic stage of the instant case (reported as Wandsworth London BoroughCouncil v Dixon [2009] EWHC 27 (Admin), [2009] L&TR 28) had followedthe then prevailing precedents such as Qazi [2004] 1 AC 983, but distin-guished the case from the more typical cases where the local authorityinduces one joint tenant to give notice with a view to being rehoused, becausein this case the notice to quit was given by the joint tenant (who was thedefendant’s sister) without being so prompted by the local authority. Follow-ing the decisions of the Supreme Court in Manchester CC v Pinnock [2010]UKSC 45 (see Bulletin No 85) and Hounslow London Borough Council vPowell [2011] UKSC 8 (see Bulletin No 86) the distinction was clearly nolonger tenable, and, in response to Mr Dixon’s pending application to theECHR, the UK Government formally accepted that a breach had taken





place, offered £3,000 in compensation, and invited the ECtHR to dismiss theapplication. In spite of the applicant’s objections that the declaration andcompensation did not amount to ‘just satisfaction’, his application was struckout.

(Decision noted at JHL, 2012, 15(4), D84–85.)

VAT on rent of licensed premises – whether any rentshould be apportioned to residential elementsEnterprise Inns plc and Unique Pub Properties Ltd v HMRC [2012] UKUT240 (TCC) is an appeal on a point which may be of relevance to practitionersdealing with leases of licensed premises. The general position is that VAT isnot payable on rent, but that landowners may elect to charge VAT on rent,but not on residential properties. The appellant taxpayers were the owners ofa large portfolio of licensed premises, many (but not all) of which includedresidential accommodation. They elected to charge VAT, and HMRC pro-posed an apportionment of 90:10 to reflect the predominantly commercialuse of the premises. The taxpayers objected, claiming that the rental valuewas based on the likely profitability of the commercial elements, and theresidential elements were provided rent-free. The First-tier Tribunal deter-mined that part of the rent was attributable to the residential elements, andthat therefore the previously agreed 90:10 apportionment should continue toapply.

Newey J, sitting in the Upper Tribunal, upheld the decision of the First-tierTribunal. In giving judgment, he also passed observations on the role of theUpper Tribunal on appeals. Its role was not to substitute its judgment for thatof the FTT, but to consider whether the lower tribunal was entitled to cometo the decision that it did.

Covenant allowing landlord to enter licensed premisesto install “monitoring systems” – relevance of Weightsand Measures Act 1985Unique Pub Properties Ltd v Broad Green Tavern Ltd and another [2012]EWHC 2154 (Ch) is another case which lies at the margins of the areacovered by this work but may be of particular interest to those who adviseclients in the licensed trade. The claimant landlord sought to have the‘i-draught’ monitoring system installed on all the beer and cider lines in apublic house which it owned. It was acknowledged that the purpose of thesystem was so that the claimant could detect illegal ‘off-tie’ sales. Thedefendant licensee company objected. The claimant brought an action formandatory injunctive relief, which was heard on an application for summaryjudgment.

The defendant’s first ground of objection relied on the wording of the lease.The terms of the lease allowed the claimant “[t]o enter the Property … (1) toinspect and/or take inventories … [and] (6) to install operate repair replacerenew inspect and maintain such beer and cider (or other drinks) dispensing


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equipment including (without limitation) lines pumps cooling apparatus flowregulating or monitoring systems and such other ancillary equipment asUnique may from time to time consider appropriate or desirable”. Warren Jheld that the wording of the clause was sufficiently broad to cover theinstallation of the ‘i-draught’ system: even if the exact system was not inexistence when the lease was granted in 1999, it was clearly a ‘monitoringsystem’ and, if necessary, the concluding words of the quote extended whatwent before them. The judge also rejected the defendant’s argument based onss 7 and 17, Weights and Measures Act 1985, to the effect that the sectionsrequired that measuring equipment be accurate, and that doubts had beencast over the reliability of ‘i-draught’. The judge rejected this argument, onthe basis that the equipment would not be used directly in connection withthe sale of beers or ciders, either by the defendant to the retail customers, orby the claimant to the defendant. If the claimant ultimately sought to recoverpenalties from the defendant based on illegal ‘off-tie’ sales, any argument asto the accuracy of ‘i-draught’ could be raised then.

Attempt to take over deceased brother’s secure tenancy– whether defence under art 8, ECHR could be made outBirmingham City Council v Lloyd [2012] EWCA Civ 969 offers furtherguidance on the extent to which a defendant to possession proceedings mayinvoke a defence based on art 8 of the European Convention on HumanRights. The existence of an art 8 defence was, of course, eventually acceptedby the Supreme Court in Manchester CC v Pinnock [2010] UKSC 45 (seeBulletin No 85) and Hounslow London Borough Council v Powell [2011]UKSC 8 (see Bulletin No 86), though with the proviso that the threshold forestablishing such a defence would be high. The Court of Appeal offered moredetailed guidance on the application of the threshold in Corby BC v Scott[2012] EWCA Civ 276. The decision of Mr Recorder Del Fabbrio in theBirmingham County Court, the subject matter of this appeal, was givenbefore the Corby case.

The respondent’s brother was the tenant of a flat owned by the appellant.When he died the respondent moved into the flat without the consent ofeither the deceased’s personal representatives or the council. The respondentwas already the tenant of another council property in Birmingham. An orderfor possession had been made against him for non-payment of rent, but thisorder had been suspended on the basis that he pay the current rent and asmall amount off the arrears. After moving in, the respondent attempted toclaim housing benefit, but was told that he would remain liable for the renton his previous property until he had served notice to determine his tenancy.He was warned in writing that the Council was not prepared to grant him atenancy of the flat; that the Council was proposing to serve notice todetermine the tenancy of the flat; that when that notice had expired,possession proceedings would be brought against him if he had not vacatedthe flat; that he should therefore return to his previous property; and that hehad 14 days in which to appeal against the refusal of permission to succeed tohis deceased brother’s tenancy. The respondent nevertheless gave up his





existing tenancy, and was unsuccessful in his application to succeed to hisbrother’s tenancy (but it should be noted that, as he had not resided with hisbrother, he did not appear to have any basis for this). At no stage did therespondent have any status other than a trespasser.

The appellant Council brought possession proceedings. The respondent fileda defence which effectively accepted that he was a trespasser, but whichclaimed that eviction would be a disproportionate interference with his rightto respect for his home under art 8, ECHR. The Recorder perhaps surpris-ingly accepted this, based upon the respondent’s history of depression; hisfinancial circumstances; the fact that he had invested money and effort insetting up a business from his home; an element of confusion over thecircumstances in which he had given up his previous tenancy; and the factthat he had not been guilty of any anti-social behaviour towards his newneighbours.

The CA allowed the council’s appeal. None of the reasons accepted by theRecorder were sufficiently compelling to be accepted as exceptional withinthe meaning of the Corby case, and whilst one could not say that a trespasserwould never be able to invoke an art 8 defence (see [18]), it seemed toLord Neuberger MR that “it would require the most extraordinarily excep-tional circumstances”. The Recorder had further confused the concept of“respect for a person’s current home” with a “duty to ensure that a personhas a home”. Although there had been an element of confusion, in that therespondent had understood that the Council was encouraging him that hemight be able to take over his brother’s tenancy, the likely reason for this wasthat the Council was properly advising him that he did, indeed, have the rightto apply to be treated as the successor. In refusing a possession order, theRecorder was effectively attempting to usurp powers over the allocation ofcouncil tenancies which were properly the province of the local authority (see[17]).

For future guidance, the CA suggested that, upon receipt of the respondent’sdefence, the district judge should have concluded ‘on the papers’ that, even iffacts alleged by the respondent were correct, a case on art 8 had not beenmade out, and should not have allowed the matter to go to a one-day trial.

(Case noted at JHL, 2012, 15(5), D120–121.)

Service charges – s 20, LTA 1985 dispute – whethercharges for security, collection costs, and advice re:dispute with developer were recoverable – effect of verybroad ‘sweeping up’ clauseLiverpool Quays Management Ltd v Moscardini [2012] UKUT 244 (LC) is anappeal to the Upper Tribunal relating to a service charge dispute. It wouldappear that the case began as a claim by M that she was not liable for theservice charges as claimed because the appellant management company wasin breach of s 21(1), LTA 1985 in failing to provide her with details of howthe service charge was calculated. The LVT ruled that no service charge was


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payable unless and until the appellant complied with this. Additionally,however, the LVT went on to rule on whether certain disputed items ofexpenditure had been reasonably incurred.

One group of items related to costs incurred on legal advice in pursuing aclaim against the developer for defects to the development of which theproperty formed part. The LVT disallowed this, finding no provision in thelease for such expenditure to be passed to the service charge account. TheLVT also disallowed part of the cost of expenditure on security guards, andpart of a ‘service charge collection fee’.

The appeal proceeded by agreement as a rehearing rather than as a review.The appellant explained that the security needs of the development hadincreased as a result of the opening of the Liverpool Echo Arena immedi-ately adjacent to the development. M responded that the real reason was theappellant’s failure to control short-term and hotel-type lettings of the flats,resulting in the need for security to control noise nuisance. She claimed thatthe underleases allowed only assured shorthold lettings which had to beregistered with the appellants, but this was not enforced. The appellant’sresponse was that there was no such restriction in the underleases, and thatthere was little that they could do in terms of admitted breaches of covenantsagainst nuisance and business use. Whilst the President (Mr Bartlett QC)thought that the appellant should look more closely at what could be doneabout the problems, he agreed that, even if they had, it would have taken asubstantial time to solve them, and that the increased expenditure on securitycosts had been reasonably incurred.

The legal fees for the collection of service charges were held to be within thescope of the service charge provisions of the lease, to have been reasonablyincurred, and of a reasonable amount.

The appellants, however, lost the appeal on the legal fees incurred ininvestigating the possibility of a claim against the developers in respect ofdefects. The appellant alleged that they were recoverable under a term in theunderlease allowing expenditure incurred “in and about the maintenance” or“the proper and convenient running” of the property. The President thoughtthat this prescribed “a much more immediate connection between theexpenditure and the maintenance”. He did not think the expenditure fellwithin a ‘sweeping up’ clause which was so widely worded as to allowexpenditure on almost anything (“All costs and expenses (other than thosespecified above) of whatsoever kind incurred by the Management Company(including any proper sum for future or contingent liabilities and anyreasonable reserve)”). If taken at its face value, it would have renderedmeaningless the various restrictions and limitations contained in the detailedservice charge provisions which preceded it. It could not therefore have thewide wording for which the appellants contended.

The case may therefore serve as a warning for those who draft leases: a‘sweeping up’ clause which is too broadly worded may be held to bemeaningless. A clause which is less broadly worded may, if it has to beconstrued by a tribunal, be more useful.





Service charge – insurance premiums – whether generalnoting of lessees’ interests complied with covenant toinsure in joint namesGreen v 180 Archway Road Management Co Ltd [2012] UKUT 245 (LC)raises a short but interesting point on service charges and covenants to insure.The lease required the landlord to insure the premises in the joint names ofthe landlord and the tenants. The tenant alleged that this had not beencomplied with, and so her share of the insurance premium was irrecoverable(indeed, she had taken out her own insurance to protect her position).

The Upper Tribunal (HHJ Huskinson) held that the landlord had compliedwith the covenant during 2005/06 when the interest of the tenant had beenspecifically noted by name on the policy, but not during subsequent yearswhen there was merely a ‘general interest’ noted on the policy which did notname her. As the tenant was required to contribute when the landlord hadinsured in accordance with the covenant, her share of the premium was notrecoverable for those years.

The decision raises some difficult issues. The judge assumed – neither partybeing legally represented – that noting an interest by name on a policy was theequivalent of insuring in joint names. This is not this editor’s understanding ofthe legal position: “noting an interest” simply has the effect of barringsubrogation, and ensuring that the person whose interest is noted is informedbefore a policy is allowed to lapse. A covenant to insure in joint names is notsatisfied if the covenantor insures in his own name, and the interest of theother is noted. But there was a letter before the tribunal suggesting thatinsurers were nowadays reluctant even to note interests by name because ofthe additional work involved: a ‘general interest’ clause was normally takento suffice. Clearly an insurer cannot inform interested parties who are notedonly by description rather than by name. If insurance in the joint names oflandlord and tenants is no longer generally available in the residential field,then this needs to be reflected in new leases; the difficulty for landlords underexisting leases is that the fact that it is impossible to comply with a covenantdoes not mean that a party is not in breach of covenant: MoorgateEstates Ltd v Trower [1940] Ch 206. This may, however, amount to circum-stances where frustratory mitigation could be invoked (cf. John Lewis Proper-ties plc v Viscount Chelsea [1993] 2 EGLR 77).

Service charge dispute – local authority leaseholders –basic of calculation of element for management costsIn South Tyneside Council v Ciarlo [2012] UKUT 247 (LC) the UpperTribunal (HHJ Huskinson) allowed an appeal from the LVT and determinedthat a local authority, which had delegated its housing management respon-sibilities to an Arm’s Length Management Organisation (ALMO), wasentitled to pass on to its long leaseholders (who had purchased flats underthe Right to Buy) a management charge which was calculated on the basis ofa reasonable apportionment of the costs incurred by the ALMO in supplyingmanagement services to all the Council’s long leaseholders. The UT rejected


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the view of the LVT that such management charges ought to be calculated ona block-by-block basis, based upon the level of services which had to beprovided in each block.

Service charge consultation – whether second noticeappeared to preclude further genuine consultation –whether final date for submissions had beenproperly statedPeverel Properties Ltd v Hughes [2012] UKUT 258 (LC) involved an appealby the landlord to the Upper Tribunal on two limited points arising out of aconsultation prior to major works at the development. The UT had previ-ously declined permission to appeal against most of the LVT’s findings.

One point which had been decided against the landlord was whether it hadfully complied with the second stage of the consultation process, specificallythe Service Charges (Consultation Requirements) (England) Regula-tions 2003, Sch 4, Pt 2, para 4(10)(b). The landlord had sent out details ofvarious estimates for the works; although the notice advised where theestimates could be inspected, and invited comments on them, it also said: “Itis now our intention to enter into an agreement with [the contractorrecommended by the surveyors] …”. At the same time a request was made fora payment on account of the works, which was based on the preferredestimate. The LVT had held that this implied that the leaseholders were beingfaced with a ‘fait accompli’ and there had not been proper compliance withthe consultation requirements. HHJ Huskinson in the Upper Tribunal disa-greed. Although the notice might have been better worded (eg ‘It is at presentour provisional intention (subject always to further consideration in the lightof any observations received in accordance with paragraph 3 above) to enterinto an agreement with …’), the notice did sufficiently convey that leasehold-ers did have an opportunity to make further comments.

The other point which had been decided against the landlord was whether thesecond notice had complied with the requirement of Sch 4, Pt 2,para 4(10)(c)(ii) that a date be specified by which observations should bemade. The notice had specified ‘within 35 days from the date of this notice’.The judge felt that (a) this was sufficiently clear to convey that the period of35 days commenced on the day following the notice, and (b) it had beenestablished by case law that a calendar date did not have to be specified,provided it could be ascertained from the notice.

(Because of the other breaches found by the LVT, the amount of the costs ofthe works would be limited, but it was understood that an application hadbeen made to the LVT for dispensation, in respect of the points which hadnot been subject to the appeal to the UT.)





Service charge dispute – limit on cost of repairs andimprovements when Right to Buy exercised – costs‘straddling’ five-year periodHavering London Borough Council v Smith [2012] UKUT 295 (LC) is anotherservice charge dispute involving a local authority freeholder, although in thiscase the flat in question had been purchased by the respondent’s predecessorin title under the Right to Buy in 2001 and the dispute arose out of thecontent of the notice under s 125, HA 1985. The notice had indicated whatworks the Council proposed to undertake by way of repairs and improve-ments within the next five years, and had the effect of limiting the newleaseholder’s liability to the estimated cost of the works (subject to an upliftfor inflation).

In the case of this flat the total relevant costs were £1,580. The Councilcarried out improvement works which would have resulted in the leaseholderof the flat incurring a charge of £7,666, but the respondent was notified thatthis would be reduced to £1,664 as a result of the s 125 limitation. When thefinal costings came in, this was further reduced to £1,568. The respondentwas therefore annoyed when she received a service charge account for £4,759,and appealed to the LVT against it. The reason for the increase was that theworks had been delayed, with the result that 49 of the 54 weeks of thecontract period fell outside the five-year limitation period. The local author-ity had therefore adopted a system of apportionment known as ‘straddling’.The LVT had held that this was impermissible, and restricted the amountrecoverable to the amount originally notified.

The Council appealed. In the UT, HHJ Walden-Smith upheld the Council’sargument on the general points of law, holding that they were not obliged tocarry out the works described in the s 125 notice within the five-year period,and that if they were carried out later, the costs would be fully recoverable.Further, in a case such as the instant case, the Council was entitled to adoptthe ‘straddling’ method of apportionment. On the facts, however, the Councilhad here made an assurance to the respondent before she purchased the flatin 2004 that her costs would be restricted as set out above, and this amountedto an ‘estoppel by representation’ upon which she had relied. The recoverablecosts would therefore be restricted to the sum allowed by the LVT.

DIVISION C: PRIVATE SECTORRESIDENTIAL TENANCIES

Selective licensing scheme under Part 3 of HousingAct 2004 – landlord convicted of renting out propertywhilst unlicensed – whether court could imposeconfiscation order under the Proceeds of CrimeAct 2002R v Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840 is, as its citationsuggests, a criminal case and does not fall within the general ambit of this


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work. It is, however, noted as it is a successful appeal by a landlord againstthe imposition of a confiscation order imposed by the Crown Court inrespect of rents obtained for a property whilst the property was unlicensed,the local authority having imposed a selective licensing requirement generallyacross the relevant ward under Part 3 of the HA 2004. The Court of Appealheld that the offence (under s 95(1), HA 2004) of which the defendant wasfound guilty was of a regulatory nature, and did not therefore fall within thedefinition of “property obtained as a result of or in connection with criminalconduct” under s 76 of the Proceeds of Crime Act 2002. Further, theexistence of a separate power under s 96 and s 97 for the court to make a rentrepayment order opened up the possibility – if the court could also make aconfiscation order – of a penalty being imposed twice. This also pointedtowards applying a restrictive interpretation to s 76 of the 2002 Act.

Appeal against Rent Assessment Committee’s setting offair rent under Rent Act 1977 – use of comparableR (on the application of Triplerose Ltd) v Bonner [2012] EWHC 2306 (Admin)is an appeal by the landlord against a decision of a Rent AssessmentCommittee, setting a fair rent for a property under ss 70–71, Rent Act 1977.It appeared that, in setting the rent, the RAC had, in effect, taken the rent ofa quite dissimilar property as a comparable, made certain adjustments, andcalculated a fair rent for the instant property from that. The comparableproperty had not been mentioned to the landlord’s representative before thehearing and he had not had a proper opportunity to consider it.

The appeal was allowed, and the application for a fair rent was remitted tothe RAC for it to rehear the matter: if possible the RAC should be differentlyconstituted.

DIVISION D: PUBLIC SECTOR RESIDENTIALTENANCIES

Succession to a secure tenancy – whether tenancypassed to spouse by survivorship at common law or todaughter under s 89, HA 1985In Solihull MBC v Hickin [2012] UKSC 39 the local authority had in 1980 leta property to a married couple. The father had left (probably in 2001), leavingthe mother and the daughter (the appellant) in occupation. The mother diedin 2007, whereupon the local authority served notice to quit upon the father,and commenced possession proceedings against the daughter. She claimed tobe a secure tenant by succession under s 89 of the HA 1985. The localauthority countered with the argument that, on the mother’s death, the fatherbecame the sole tenant by survivorship – but as he was not in occupation, hewas not a secure tenant, and so his tenancy could be determined by notice toquit. The appeal therefore raised the short but difficult point of whether thecommon law right of survivorship prevailed over s 89, or vice versa.

DIVISION D: PUBLIC SECTOR RESIDENTIAL TENANCIES




The Supreme Court upheld (by a 3:2 majority) the Court of Appeal decision[2010] EWCA Civ 868 and agreed that the right of survivorship prevailedhere. Lord Sumption (with whom Lord Walker and Lord Hope agreed) heldthat s 89 applied only when a sole secure tenant died. If one of two jointtenants died, the tenancy remained vested in the survivor (although, if thesurvivor were not in occupation, it would not be a secure tenancy). Whilstrecognising that this result might appear harsh in the particular circum-stances of this case, the majority pointed out that, if one interpreted s 89 asthe appellant contended, it could, in other factual situations, have someequally undesirable results (see [15]). The majority also thought ([8]–[11]) thatthis interpretation was consistent with a decision, on similar facts, onsuccession under the Rent Acts (Tennant v Hutton (9 July 1996, unre-ported), CA).

Lord Mance (with whom Lord Walker concurred) delivered a fully-reasoneddissenting judgment, which would have interpreted s 89 so that it appliedwhenever one of two joint secure tenants died. He felt that the undesirableresults which concerned the majority ([15]) would in practice arise veryseldom ([42]).

It is worth noting that, had the parents continued to live together, theacquisition by the survivor of sole tenancy rights would have been deemed tobe a succession (HA 1985, s 88(1)(b)), and so (as the Court of Appealpointed out at [22]), the appellant would not then have been entitled tosucceed to the tenancy on the death of the survivor.

A possible lesson for practitioners from this case may be that, if a client whois one of two secure joint tenants is separated, it may be in the interests ofany adult child who is living at home to investigate the possibility of thesecure tenancy being vested in the sole name of the parent in occupation. Asmost secure tenancies will be unassignable (s 92(1), HA 1985) and cannot be‘released’ to one tenant (Burton v Camden London Borough Council [2000]2 AC 428) this would involve the surrender and re-grant of the tenancy to theparent in occupation. This would clearly require the co-operation of both thelandlord, and the joint tenant who was out of occupation. Failing this, itwould be necessary for there to be divorce (or judicial separation) proceed-ings (or the equivalent under the Civil Partnership Act 2004), so that thecourt can order that secure tenancy should be transferred under s 24 of theMatrimonial Causes Act 1973; or that the tenancy could be vested in oneparty under the Family Law Act 1996, Sch 7, para 7. The latter provisionwould also be available if the parents were not married.

(Case noted at S.J. 2012, 156(31), 5.)

Introductory tenancy under HA 1996 – whether a noticeof intention of seeking possession (s 128) could beconfirmed conditionally upon review under s 129Camden London Borough Council v Stafford [2012] EWCA Civ 839 illustratesthe dangers when the review panel of a local authority landlord acceptsassurances from a tenant that she will improve her behaviour and resolves to

DIVISION D: PUBLIC SECTOR RESIDENTIAL TENANCIES

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give her a further chance. The tenant had been granted an introductorytenancy of her flat under the HA 1996. Almost immediately there werecomplaints from neighbours of noise nuisance. The Council served noticeunder s 128 that it was proposing to take proceedings for possession. Thetenant requested a review under s 129. The review panel specifically acceptedthat the Council had been justified in serving the s 128 notice, but, inresponse to the tenant’s assurance that her former partner had been mainlyresponsible, accepted the tenant’s willingness to sign an Acceptable Behav-iour Agreement, and to investigate the possibility of the Youth InterventionSupport Panel offering her some support. There were further complaints ofnoise, and the Council sought to obtain possession, based on the originals 128 notice. The judge in the Central London County Court refused theCouncil’s claim for possession, on the basis that the review panel had notconfirmed the initial s 128 notice, in spite of noting the tenant’s continuing“appalling behaviour”.

The Court of Appeal upheld the judge’s decision. The review panel, inoutlining alternatives, had not confirmed the original notice. Etherton LJ –with whom the other Lords Justices agreed – went as far as to say that a s 128notice could not be conditional, and it therefore followed that, on reviewunder s 129, it had either to be confirmed or not: there was no room forapproval subject to conditions or provisos.

DIVISION E: LONG LEASES

Lease extension – flat held under two leases, one ofwhich had been held for less than two years – whetherformer lease was, following extensive alterations, thelease of separate premisesHoward de Walden Estates Ltd v Broome [2012] L&TR 16 (Central LondonCounty Court, 15 November 2011, HHJ Dight) is an application by thelandlord for a declaration that the tenants were not entitled to a leaseextension in respect of their flat. They had since 2007 held the 2000 lease of asuite of rooms now forming part of the flat; they subsequently took a lease offurther adjoining areas and incorporated them into an enlarged flat. Theyfailed in establishing their eligibility for a lease extension in that they had notheld the lease of the additional areas for the requisite two-year period, andthey could not obtain an extension of the original 2000 lease because, as aresult of the extensive works that had been carried out, it no longer could beconsidered as a lease of a separate set of premises. Under the currentconfiguration neither lease could, taken on its own, be considered as a leaseof a flat.

Lease extension under LRHUDA 1993 – costs to beawarded under s 60 to an intermediate landlord –whether reasonably incurredDashwood Properties Ltd v Chrisostom-Gooch [2012] UKUT 215 (LC) is anappeal to the Upper Tribunal by an intermediate landlord on the costs to be





allowed under s 60, LRHUDA 1993 on a lease extension. D had servednotice, under s 40 of and Sch 11 to the Act, that it wished to act indepen-dently of the head landlords, the Church Commissioners. Of the variousgrounds of appeal: (1) the Upper Tribunal decided that although the LVTshould have given the appellant the opportunity to comment on the objec-tions of the respondent to the costs claimed, the UT accepted the view of theLVT that this would not have affected their decision in this case; (2) the LVTwere entitled to take into account the consideration paid for the leaseextension in determining how far the costs were reasonably incurred; and (3)as the appellant was entitled to be separately represented, and there might bea conflict of interests between the landlords, no deduction should have beenmade because of this. However, the LVT was entitled to reduce the costsclaimed on the basis of duplication in that the appellant had instructeddifferent solicitors to deal with considering the claim for the lease extension,and to carry out the necessary conveyancing work.

Enfranchisement under s 27 of the Leasehold ReformAct 1967 – whether reversion was to be valued asif landlockedRe Clarke [2012] UKUT 226 (LC) is an appeal against an LVT valuation foran acquisition of a freehold under the LRA 1967, which raises the unusualpoint of whether the reversion should have been valued on the basis that itenjoyed a right of way, or whether the land was effectively landlocked. Theproperty was held under a lease for 400 years from 1641 at a peppercorn rent.The freeholder could not be traced, so the enfranchisement was proceedingunder s 27 of the LRA 1967. HHJ Huskinson, in the Upper Tribunal, heldthat the reversion should have been valued on the assumption that it did notenjoy a right of way, and the price to be paid into court was accordinglyreduced.

Lease extension under LRHUDA 1993 – appropriatedeferment rate – effect of increasing awareness of LTA1985 and Consultation RegulationsCity & Country Properties Ltd v Yeats [2012] UKUT 227 (LC) offers guidanceon the deferment rate to be used on the price to be paid for a lease extensionunder the LRHUDA 1993. The LVT had adopted a rate of 6%, based on therate of 5% for blocks of flats (4.75% for houses, plus 0.25% in respect ofmanagement problems associated with flats) laid down in the decision of theLands Tribunal in Cadogan v Sportelli [2007] 1 EGLR 153, to which it added0.5% for the risk that growth would not be achieved at the Prime CentralLondon (PCL) rate, 0.25% for obsolescence, and 0.25% for further risksinvolved in the management of this particular block of leasehold flats.

The additions followed the decision of the Upper Tribunal in Zuckerman vTrustees of Calthorpe Estate [2010] 1 EGLR 187. Permission to appeal on theobsolescence point was refused; on the remaining points, HHJ Huskinsonand Mr Rose in the UT concluded that a total of 0.50% should be added to


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the starting point rate of 4.75% in respect of management problems, butnothing in respect of the risk as to growth rate, so that, with the addition of0.25% for obsolescence, the deferment rate should have been 5.5%. Theincrease in the addition for the risks involved in the management of blocks offlats reflected the increasing awareness since Sportelli of the potentiallydraconian effect on landlords of the Landlord and Tenant Act 1985 and theService Charges (Consultation Requirements) (England) Regulations 2003.More evidence would have been required to justify an adjustment in respectof the growth rate.

Notices claiming right to manage – inaccuracies inthe noticeAssethold Ltd v 14 Stansfield Road RTM Co Ltd [2012] UKUT 262 (LC). TheUpper Tribunal held that a notice under the Commonhold and LeaseholdReform Act 2002, s 79 containing a claim to acquire the right to managepremises was valid even though it was in the form prescribed by the Right toManage (Prescribed Particulars and Forms) (England) Regulations 2003,instead of the Right to Manage (Prescribed Particulars and Forms) (Eng-land) Regulations 2010. The only material difference between the two formswas that one referred to the 2003 Regulations and the Companies Act 1985,whilst the other referred to the 2010 Regulations and the CompaniesAct 2006. The error fell within the sort of ‘inaccuracy’ allowed for by s 81(1),CLRA 2002 and described in Assethold Ltd v 15 Yonge Park RTM Co Ltd(below). Further, the notice had been duly signed when it had been signed bysomeone who was authorised by the three directors of the RTM company tosign, but was not herself an officer of the company. This was sufficient tocomply with the requirement that the person was signing ‘by authority of thecompany’.

The case may be contrasted with the earlier case of Assethold Ltd v 15 YongePark RTM Co Ltd [2011] UKUT 379 (LC) where a notice which failed to givethe correct address of the registered office of the RTM company was held tobe invalid, as failing to comply with one of the mandatory requirements ofs 80(5), CLRA 2002. Giving the wrong address was not an ‘inaccuracy’ whichcould be excused under s 81(1): that was intended to cover something like anerror in spelling or typing. It was irrelevant that there was no evidence toshow that the appellant had in any way been prejudiced by the error.

CASE CITATOR, AND LEAVE TO APPEALBritish Telecommunications Ltd v Rail Safety and Standards Board Ltd neutralcitation: [2012] EWCA Civ 553 (omitted from Bulletin No 94)

Magnohard Ltd v Earl Cadogan and another [2012] EWCA Civ 594 (BulletinNo 94): Permission to appeal refused by Supreme Court on 5 July 2012.

Souglides v Tweedie [2012] EWHC 561 (Ch) (noted in Bulletin No 93): it isunderstood that an appeal to the Court of Appeal is pending.

CASE CITATOR, AND LEAVE TO APPEAL




NOTES ON CASES

Barking and Dagenham London Borough Council v Bakare [2012] EWCA Civ750: JHL, 2012, 15(4), D97–98 (noted in Bulletin No 94)

Beitov Properties Ltd v Martin [2012] UKUT 133 (LC): 162 NLJ 800 (notedin Bulletin No 94)

British Telecommunications Ltd v Rail Safety and Standards Board Ltd [2012]EWCA Civ 553: EG, 7 July 2012, 87; Property Week, 22 June 2012, 57; [2012]Comm Leases 1825–1826 (noted in Bulletin No 94)

Camden London Borough Council v Stafford [2012] EWCA Civ 839, [2012]26 EG 97 (C.S.): [2012] L&TR, 16(4) D23

Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 736: EG,28 July 2012, 73 (noted in Bulletin No 94)

Church Commissioners for England v Koyale Enterprises Inc [2012] 21 EG 96:S.J. 2012, 156(30), 10–11 (Noted in Bulletin No 91)

Corby Borough Council v Scott; West Kent Housing Association Ltd vHaycraft [2012] EWCA Civ 276: [2012] L&TR 148–152 (noted in BulletinNo 93)

Faidi v Elliott Corpn [2012] EWCA Civ 287: JHL, 2012, 15(4), D96 (noted inBulletin No 93)

Fitzhugh v Fitzhugh [2012] EWCA Civ 694: [2012] Comm Leases 1825–1826(noted in Bulletin No 94)

Frozen Value Ltd v Heron Foods Ltd [2012] EWCA Civ 473: [2012] CommLeases 1830–1832; and [2012] L&TR 130–134 (noted in Bulletin No 93)

Gemini Press Ltd v Parsons [2012] EWHC 1608 (QB): [2012] L&TR 168–172

Hardy v Haselden [2011] EWCA Civ 1387: [2012] Comm Leases 1841–1842(noted in Bulletin No 91)

HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), [2010] 3 EGLR15: EG, 30 June 2012, 94

Humber Oil Terminal Trustee Ltd v Associated British Ports [2012] EWHC1336 (Ch), PLJ, 11 June 2012, 22–24: [2012] Comm Leases 1832–1833(interim rent under s 24D, LTA 1954) (noted in Bulletin No 94)

Humber Oil Terminals Trustee Ltd v Associated British Ports [2012] EWCACiv 596: [2012] Comm Leases 1827–1830; [2012] L&TR 152–155 (noted inBulletin No 94)

Intergraph (UK) Ltd v Wolfson Microelectronics plc [2012] EWHC 528 (Ch):[2012] L&TR 168–172 (noted in Bulletin No 93)

Re Lee’s Application [2012] UKUT 125 (LC): [2012] Comm Leases 1836–1838 (noted in Bulletin No 94)

NOTES ON CASES

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Leisure (Norwich) II Ltd v Luminar Lava Ignited Ltd (in administration) [2012]EWHC 951: [2012] L&TR, 16(4) D19–20 (noted in Bulletin No 93)

Magnohard Ltd v Earl Cadogan and another [2012] EWCA Civ 594: JHL,2012, 15(4), D90–91, [2012] L&TR 160–162 (Bulletin No 94)

MK Airlines Ltd (In Liquidation), Re (Ch D (Companies Ct)) (16 May 2012,unreported) [2012] Comm Leases 1843–1846

Patel v MRD Property Developments Ltd [2012] EWCA Civ 727: PropertyWeek, 6 July 2012, 72–73; and [2012] Comm Leases 1833–1834 (noted inBulletin No 94)

PCE Investors Ltd v Cancer Research UK [2012] EWHC 884 (Ch): 162 NLJ829, [2012] L&TR 168–172 (noted in Bulletin No 93)

Scottish Widows’ Fund and Life Assurance Society v BGC International(formerly Cantor Fitzgerald International) [2012] EWCA Civ 607: 162 NLJ1048; and [2012] Comm Leases 1823–1825 (noted in Bulletin No 94)

Souglides v Tweedie [2012] EWHC 561 (Ch): EG, 30 June 2012, 95, [2012]L&TR 155–160 (noted in Bulletin No 93)

Westbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd[2012] EWCA Civ 66: EG, 14 July 2012, 79; and [2012] L&TR, 16(4) D23–24(noted in Bulletin No 94)

Wickland Holdings Ltd v Telchadder [2012] EWCA 635: HPLR, 2012,82(Jun), 2–3 (noted in Bulletin No 94)

Salisbury Independent Living Ltd v Wirral MBC [2012] EWCA Civ 84: JSSL2012, 19(2), D96–98 (noted in Bulletin No 92)

ARTICLES OF INTEREST

Don’t Bank on it (new regime for residential tenancy deposits): PLJ, 11 June2012, 7–9

In a Fix? (flexible tenancies): 162 NLJ 868

In a Fix (2)? 162 NLJ 930

In Practice: Benchmarks: Time to Rebuild the Small Print (reform of s 21(4),HA 1988): (2012) LS Gaz, 5 Jul, 21

Proprietary Estoppel and the Constructive Trust as Defences to the Operationof a Landlord’s Break (discusses Crossco No 4 Unlimited v Jolan Ltd [2011]EWCA Civ 1619): (2012) 16 L & T Rev 88–91

Service Charges: Who Pays When a Residents’ Management Company Fails toComply? (2012) 16 16 L & T Rev 92–94

Repudiatory Breach in the Leasehold Context: Some Unresolved Issues (2012)16 L & T Rev 95–98

How to Deal with a Tenant in Administration PLJ, 25 June 2012, 10–12





Green Deal or No Deal for Everyone? Legal Week, 13 July 2012, 15

Pop-up Shops are the Future, so Prepare the Legal Ground (very short-termtenancies): Property Week, 22 June 2012, 55

An Empty Argument (liability for unoccupied property rates following dis-claimer of a lease): EG, 4 August 2012, 40–42

Divide and Keep Open: Courts Rule Differently North and South of the BorderProperty Week, 3 August 2012, 51

Flexible Tenancies: an Overview JHL, 2012, 15(4), 66–71

Localism: keeping it local again …and again …and again …or not? JHL, 2012,15(4), 72–76

Mitigating the risks of conditional contracts Sol Jo 2012, 156(27), 21

Ringing the Changes (considers Law Commission Consultation on reformingthe Electronic Communications Code (noted below)): EG, 11 August 2012,36–39

Strengthening the Roots of a CPO (transferring title following a CompulsoryPurchase Order): EG, 11 August 2012, 40–41

Déjà Vu (reforms to Tenancy Deposit Scheme by Localism Act 2011): 162NLJ 1071

Road to Conflict (property slump boosts real estate litigation): The Lawyer,6 August 2012, 30–32

Talking in Code (Q&A on Electronic Communications Code): EG, 7 July2012, 83

Dilapidations and Car Crashes (calculation of damages in dilapidationsclaims): EG, 7 July 2012, 86

Time to Rebuild the Small Print (assured shorthold tenancies): LS Gaz 2012,109(27), 21

Breaking the Code (access under Electronic Communications Code): 162 NLJ895

Recent Developments in Housing Law Legal Action 2012, Jul 37–43

Recent Developments in Housing Law Legal Action 2012, Aug 23–29

Landlords in the dock: prosecuting to protect tenants Legal Action 2012, Jul44–48

Time to back out of reverse service charges EG, 21 July 2012, 80

Shorter and sweeter (trend towards more flexible leases): EG, 21 July 2012, 82

In with the new? (Localism Act 2011, and the need for indemnity insurance tocover planning uncertainties): 162 NLJ 961

Quality Street (criticises Conveyancing Quality Scheme): S.J. 2012, 156(28),10–11


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Principles of loss recovery EG, 28 July 2012, 69

Stuck on repeat? (review of contracting-out under Pt II, LTA 1954): [2012]L&TR 127–129

Olympic Nimbyism – keeping the guns at bay [2012] L&TR 135–137

A critical look at landlord’s remedies for tenant’s breach of repairing covenant:Part 1 [2012] L&TR 138–142

Denial of landlord’s title – a feudal relic? [2012] L&TR 143–147

Questions and Answers [2012] L&TR 163–167

HSBC sets date for Conveyancing Panel LS Gaz, 26 July 2012 (online:http://www.lawgazette.co.uk/news/hsbc-sets-date-conveyancing-panel)

Landlord and Tenant update (rent deposits): S.J. 2012, 156(30), 23–24

False sense of security (aspects of Protection of Freedoms Act 2012, includ-ing security cameras, wheel-clamping, and rights of entry): EG, 4 August2012, 43

Road to conflict (rise in real estate litigation): Lawyer 2012, 26(32), 30, 32

Registering individual mortgages in shared ownership schemes S.J. 2012,156(31), 21

Judging Conveyancers [2012] Conv 247–248

There’s no (tenant) guarantee [2012] Conv 279–290

Easement of car parking: the ouster principle is out but problems mayaggravate [2012] Conv 291–306

The Pallant v Morgan 9equity9 – again: Crossco No 4 Unlimited v Jolan Ltd[2012] Conv 327–333

The significance of use in renewal (ie of business tenancies under LTA 1954):EG, 18 August 2012, 41

Know your limits (advising clients on property transactions): S.J. 2012,156(33), 9

The silent revolution (adoption by private registered social housing providersof non-mandatory changes of Localism Act 2011): JHL, 2012, 15(5), 83–85

Freedoms, flexibilities, complications and conundrums: succession and mutualexchange after the Localism Act 2011 (restriction of succession rights (Eng-land only, not Wales) and new exchange scheme): JHL, 2012, 15(5), 83–85

NEWS AND CONSULTATIONSHM Revenue and Customs have produced new guidance notes for completingforms SDLT 1 and SDLT 4: www.hmrc.gov.uk/sdlt/sdlt1.pdf and www.hmrc.gov.uk/sdlt/sdlt4.pdf

NEWS AND CONSULTATIONS




Department for Communities and Local Government: Next Steps to Improvethe Planning System and Support Sustainable Development (issued 3 July2012): http://www.communities.gov.uk/news/corporate/2172391 (consultationends 11 September 2012).

The Law Commission is consulting on reforming the Electronic Communica-tions Code—see Consultation Paper No 205: http://lawcommission.justice.gov.uk/docs/cp205_electronic_communications_code.pdf. These includeproposals affecting property rights (consultation closes 28 October 2012).

A House of Commons Library Standard Note (SN/SP/5994 explains actiontaken by the Office of Fair Trading to date with regard to ‘exit fees’ payablewhen some retirement flats are sold: http://www.parliament.uk/briefing-papers/SN05994.pdf

HM Revenue and Customs have issued a consultation on High-risk areas ofthe tax code: The Stamp Duty Land Tax 9transfer of rights9 or 9subsale9 rules:http://customs.hmrc.gov.uk/channelsPortalWebApp/downloadFile?contentID=HMCE_PROD1_032193. It seeks views onoptions to address tax avoidance via the transfer of rights or sub-sale rulescontained in Finance Act 2003, s 45 (consultation closes 9 October 2012).

REPORTSThink–tank Centre Forum has published a report A New Lease of Life(http://www.centreforum.org/assets/pubs/new-lease-of-life.pdf) calling forreform of the residential leasehold sector. Its proposals include licensing ofmanaging agents, with an ombudsman scheme; and reform of the law offorfeiture (though the Law Commission’s existing proposals in Law ComNo 303 Termination of Tenancies for Tenant Default are not mentioned). Thereport also calls for an increased take-up for commonhold, but does notrecommend any amendments to the CLRA 2002.

Department for Communities and Local Government: Sir Adrian Montague’sreview of the barriers to institutional investment in private rented homes hasbeen published: http://www.communities.gov.uk/documents/housing/pdf/2204242.pdf

PRESS RELEASESDepartment for Business, Innovation and Skills: Press Release (4 July 2012) re:the Small Business Lease, evolved by RICS, BRC and BPF: news.bis.gov.uk/Press-Releases/New-lease-to-make-life-simpler-for-small-businesses-67c68.aspx

British Property Federation: following the proposed company voluntaryagreement for the hotel chain Travelodge, the BPA has called for reform ofthe CVA system, which it says pits landlords against other landlords:http://www.bpf.org.uk/en/newsroom/press_release/PR120917_-_Travelodge_rescue_deal_acknowledged_but_concerns_raised_over_CVA_rules.php

REPORTS

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HM Land Registry has announced that registered land now accounts formore than 80% of the land area of England and Wales: http://www.landregistry.gov.uk/announcements/2012/registered-land-covers-more-than-80-per-cent-of-england-and-wales

STATUTORY INSTRUMENTSGreen Deal (Disclosure) Regulations 2012, SI 2012/1660: with effect from28 January 2013, these regulations specify the time when information about agreen deal plan at a property must be disclosed to prospective buyers, tenantsand licensees.

Green Deal (Acknowledgments) Regulations 2012, SI 2012/1661: also effectivefrom 28 January 2013.

Green Deal (Qualifying Energy Improvements) Order 2012, SI 2012/2105:details the descriptions of energy efficiency improvements that can beincluded in a ‘green deal plan’ (applies to England, Wales and Scotland, andcomes into force on 28 January 2013).

Green Deal (Energy Efficiency Improvements) Order 2012, SI 2012/2106:allows for energy efficiency measures to be installed in a property, and paidfor by additions to energy bills (applies to England, Wales and Scotland, andcomes into force 7 August 2012).

Stamp Duty Land Tax (Amendment to the Finance Act 2003) Regula-tions 2012, SI 2012/1667: update provisions relating to tenant’s obligationswhich do not count as chargeable consideration to reflect changes to Euro-pean legislation: relate to land transactions effective on or after 19 July 2012.

The Housing (Right to Manage) (England) Regulations 2012, SI 2012/1821:applies to local authority tenants in England only (in force 6 August 2012).

The Tax Avoidance Schemes (Information) Regulations 2012, SI 2012/1836consolidate the various amendments to the Tax Avoidance Schemes (Infor-mation) Regulations 2004, SI 2004/1864, with some further minor amend-ments, with effect from 1 September 2012.

Land Registration Fee Order 2012, SI 2012/1969 comes into force on 22 Octo-ber 2012, and brings into effect a general reduction in fees for applicationsand services.

Licensing and Management of Houses in Multiple Occupation and OtherHouses (Miscellaneous Provisions) (Amendment) (England) Regulations 2012,SI 2012/2111: simplifies applications for renewals of licenses where licensingof HMOs applies (in force 10 September 2012 (England only)).

STATUTORY INSTRUMENTS




Correspondence and queries about the content of Hill & Redman’s Law ofLandlord and Tenant should be sent to Duncan Wood, Senior Editor, Lexis-Nexis, Halsbury House, 35 Chancery Lane, London WC2A 1EL, tel: 020 74002500, email: [email protected] and filing enquiries should be directed to LexisNexis CustomerServices, LexisNexis, PO BOX 1073, BELFAST, BT10 9AS. Tel 0(84) 53701234.

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