Property Newsletter: December 2020

Introduction

Welcome to the December 2020 edition of the Property Newsletter from Hardwicke.

This month John Clargo will examine the knotty question of limitation in Japanese Knotweed claims and Claire Gallacher spins the wheel of questions for us. 

For all things Covid-19 related, Hardwicke’s Covid-19 resources related hub can be found at https://hardwicke.co.uk/covid-19/ 

In lockdown 2.0 from all the team at Hardwicke we continue to wish you and your family all the best at this difficult time.

Carl Brewin & Lina Mattsson – Editors

Activity Report – What we have been up to and what we'll be getting up to over the coming month

Brie Stevens-Hoare QC has been busy with mediations and several landlords’ responses to failure of consideration/implied terms/rent cesser defences to claims for Covid-related rent arrears. She is also knee deep in leasehold estate management disputes and a couple of boundary disputes for good measure. She is seen occasionally cycling (yes, cycling!) into chambers which for anyone who knows her pre-Covid aversion to exercise is a huge surprise.

John de Waal QC has been doing a lot of mediating and thinking about cladding (again).

Jamal Demachkie’s November has been surprisingly property-light. Instead he has spent most of the time in judicial training, learning all about QOCS, credit hire, and Crown Court convictions (try saying that in a hurry!). It’s been an eye-opener but he is keen to get back to the world of property law next month.

Having had an “in person” trial with cross-examination and being able see the “whites of the eyes” of the witness in the box, Monty Palfrey was reminded why he enjoys being at the Bar. More please.

James Hall has been dealing with yet more allegations of negligent conveyancing (this time relating to failure to investigate and advise on Listed Building Consents) as well as another unusual boundary issue (no neighbours involved at all, for once!).

Carl Brewin journeyed up to Newcastle for his first in person trial since March, a highlight of which was having to prove to hotel reception “essential worker” status by offering a wig and gown for inspection.

Daniel Gatty enjoyed the experience of participating in a real, live trial in a real, live courtroom this month, on preliminary issues in a business lease renewal claim. That aside, he has been busy on a host of different issues varying from rights of way to conveyancing negligence to the consequences of disclaimer of a lease.

Lina Mattsson has had a manic month dealing with compensation under Access to Neighbouring Land Act 1992, unlawful culverting of a ditch and unregulated lending under the Financial Services and Markets Act 2000, all mixed up with a few boundary disputes.

This month Laura Tweedy has been busying her self with anti-social behaviour. Getting injunctions to prevent it, obviously, not committing it herself. She is looking forward to the first Christmas in her own home with her husband and children.

Peter Petts is fizzin’ with antibodies and tinglin’ with T-cells, having successfully battled with Covid-19.  Brave little soldier that he is.

John Clargo has been dealing with a variety of issues this month: disrepair of commercial premises, unauthorised alterations, disagreements between joint freehold owners and the remote hearing of a trial about specific performance of finance and security obligations in a development contract. He is back running again, after a fashion. Obtaining a puppy remains a work in progress.

In addition to the regular lease and property work, Steven Woolf is acting on behalf of a number of local authorities in challenging the Court of Appeal decision in the case of Canada Goose v Persons Unknown, which has made injunctions against Persons Unknown so much harder than has been the case over the last few years.

Events

#HardwickeBrew – Twelve Tails of Christmas

Armed with whatever drink you need to keep you warm as the weather turns colder, please join us for another #HardwickeBrew on Thursday, 10th December.

The Hardwicke Property Team led by Brie Stevens-Hoare QC will be taking a light-hearted look at some of the more unexpected angles that can incur in property transactions. Dogs, cats, pigeons… What more do you need to start getting you in the festive spirit?!

If you would like to join in, please email: events@hardwicke.co.uk, letting them know which Brew you would like to attend. Then, subject to numbers, we will send you a link to the #HardwickeBrew.

J2J Property Seminar Programme 2020/21 

All the seminars in our J2J property seminar programme for 2020/21 are aimed at junior property practitioners wishing to build up their knowledge of some of the issues that come up regularly in practice or more senior practitioners looking for a refresher.

The full programme is set out below. All these seminars will take place online via Zoom at 10am and will last for 30 – 45 minutes. If you feel that all/any of theses sessions would be useful, please do feel free to mention it to colleagues.

Anyone wishing to attend any of the events should then please email events@hardwicke.co.uk to be added to the mailing list as we will be sending out formal invitations to each event before each session.

Laying the Foundations Programme

8 December 2020: Securing that security: common defences to mortgage claims

12 January 2021: Residential service charges – tips and tricks for dealing with disputes

9 February 2021: Planning for property lawyers – what you need to know

9 March 2021: Insolvency for property lawyers – beware the elephant traps

13 April 2021: How to manage TOLATA claims

11 May 2021: Probate and private client for property lawyers – an essential guide

Property lawyers – take note of Griffiths v TUI UK Ltd regarding judicial evaluation of uncontroverted expert evidence

The High Court appeal in Griffiths v TUI UK Ltd [2020] EWHC 2268 handed down in August 2020 has been much remarked on by personal injury lawyers, but the decision is also of interest for cases in the business and property courts.

Click below to watch Andy Creer and Emily Betts provide a summary.

Limitation May Prove a Nuisance in Japanese Knotweed Claims

Limitation may provide a nuisance in Japanese Knotweed claims (in which litigation over oil spills off the coast of Nigeria prompts a consideration of quantum in cases involving weeds in English gardens).

Click here to read the article by John Clargo.

Did you see? You may have missed...

Re Buzzlines Coaches Ltd [2020] EWHC 3027 (Ch)

Bona vacantia – Crown disclaimer – Dissolved company – effect of restoration to Company Register – Leases – Legal mortgages – automatic re-vesting

This case settles (for now) the all-important question for landlords of what happens when their tenant company is dissolved, the Crown disclaims the lease and the tenant is then restored to the Register of Companies. In short, the lease ‘returns’.

The facts

A lender had borrowed money to a subsidiary which was secured by a legal mortgage over leasehold property. The subsidiary defaulted on its obligations to the lender and went into liquidation. In addition, the company was struck off the Register of Companies and was dissolved in January 2020. Pursuant to s 1012 of the Companies Act 2006 the title to its leasehold property vested in the Crown as bona vacantia upon the company’s dissolution.  In May 2020, the Treasury Solicitor served a notice of disclaimer on the lender under s.1013. The lender promptly issues the claim for a declaration that it remained entitled to a legal mortgage of a leasehold property. Prior to the hearing, a former director of the company restored it to the Register pursuant to s.1024.

Decision

Judge Halliwell granted the lender the declarations sought. He held that the disclaimer did not statutorily extinguish the rights and liabilities of third parties. The mortgage rights therefore survived the disclaimer. However, in this case the disclaimer had not taken effect, as the lender had made the claim within 14 days of being served to the notice of disclaimer.

The Judge then proceeded to consider the fraught question of what happens to leasehold property which had been disclaimed once a company was restored. The Judge held that pursuant to s.1028 and s.1032, when the company was restored, it was deemed to have continued in existence as if it had not been dissolved or struck off. Transmissions of title were prima facie avoided if they were a function of the dissolution itself. The Crown’s disclaimer was such a function, so was prima facie avoided. It followed that a leasehold title was automatically re-vested in the company when the company was restored to the register, notwithstanding the Crown’s disclaimer. The decision therefore applied Fivestar Properties Ltd, Re [2015] EWHC 2782 (Ch), [2016] 1 W.L.R. 1104, [2015] 10 WLUK 233 and Carrowreagh Management Co Ltd (No.N1606237), Re [2018] NICh 18, [2018] 9 WLUK 423 (Northern Ireland) and declined to follow the Scottish case of the Court of Session (so technically a higher court than the High Court of England and Wales) in ELB Securities Ltd v Love [2015] CSIH 67.

Conclusion

This is an unwelcome decision for landlords. It means that when a tenant company is dissolved and the lease disclaimed, any subsequent transactions concerning the company property could be affected years later by an application for restoration it to the Company Register – resulting in an ‘as you were’ position. This will potentially reduce the value of affected property as prospective purchasers and tenants are likely to be deterred by the uncertainty and disruption which can be caused. Landlord are well advised to take advice as soon as a tenant company is at risk of being dissolved/struck off.

“Hardwicke Unrobed” - Get to know us better

Each month, a member of our property team has to spin ‘the Wheel of Questions’ and answer the first three questions that come up. This month, Claire Gallacher tried her luck with the wheel. 

What is your favourite word?

“Succinct”

Where do you most hope to visit?

Tokyo. I would love to try authentic sushi and would love to go in Cherry Blossom season!

What’s your guilty pleasure?

Reality TV (anything to do with the Real Housewives!)

Want to try for yourself?

Click on the wheel below!

 

Contact Us

If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team:

James Duncan-Hartill, Senior Practice Manager
Patrick Sarson, Practice Manager

To find out more about our Property Team and their work, visit the property page on our website. To view a copy of our privacy statement, please click here.

This edition of the property newsletter was edited by Carl Brewin and Lina Mattsson. Comments or queries about this newsletter? Please get in touch with him!

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