Property Newsletter: February 2018
Welcome to the February edition of the Property Newsletter from Hardwicke.
This month, Arthur Moore considers when time to appeal starts to run in the Tribunal, Steven Woolf discusses the increasing social problem of fly-tipping, Katrina Hanstock reveals her untruth from last month’s unrobed section, and Edward Rowntree teases us with his three facts, the answers to be revealed next month.
Upcoming Events
On Thursday 22 February, the Hardwicke Property Team will be presenting their annual roadshow in Manchester discussing “Commercial Landlord and Tenant: Messy Endings”. The seminar will be chaired by John de Waal QCand Katrina Hanstock, Morayo Fagborun Bennett and Monty Palfrey will be speaking. Please view the events’ page on our website for more information and to book a place. We look forward to seeing you there.
On Tuesday 6 March, Monty Palfrey, Jack Dillon and I will be speaking at a Property Litigation Association Seminar in Leeds with John de Waal QC chairing. Please view the PLA’s event page for more details and if you wish to sign up.
Also, a team of us from Hardwicke (from both the property and the construction teams) will be at MIPIM in Cannes from 12-16 March. If you will also be attending, please get in touch if you would be interested in meeting up or attending one of our events.
Simon Allison – Editor
Activity report - What we have been up to
Brie Stevens-Hoare QC’s month consisted of a heady mix of LPA receivers powers, restrictive covenants and options and is being topped off by a commercial service charge battle against our own Peter Petts – what more could she ask for?
During January, Rupert Cohen has been either in a mediation (both mediating and acting for parties) or the FtT on appointment of a manager applications at least once a week. Fortunately during the rest of the working week he found time to visit Brighton, Southend and Bristol (a coastal theme…) on a mortgage fraud, covenant enforceability and breach of directors’ duties dispute respectively.
Steven Woolf secured another Borough wide injunction, this time protecting the Green spaces of Greenwich and advised on a multi-million pound purchase of student accommodation in Birmingham.
On her return from a sunnier than expected holiday in Tenerife, Amanda Eilledge has had an insolvency themed month, including advising a tenant in a dispute with the administrator of a freeholder and finally getting round to writing her paper on the risks associated with insolvency in property transactions.
A service charge heavy month for Simon Allison. As well as three trials in three weeks concerning major works and insurance charges, Simon received judgment in one of the first Tribunal determinations concerning the recovery of the cost of works and services required to ensure fire safety in blocks clad in ACM Type 3 cladding (as was installed on Grenfell Tower), as reported in the national and trade press. View the decision, which concerned the cost of fire wardens.
Emily Betts has been in the Court of Appeal (led by Michael Wheater) on the nature of the service regime under the Party Wall Act.
Daniel Gatty spent a good deal of last month on a trial about prescriptive easements. When he wasn’t working on that, he was dealing with everything from vesting orders following company dissolution to forfeiture of restaurant leases (regarding two entirely unrelated restaurants, by coincidence).
Alastair Redpath-Stevens has seen the trend for committals continuing with the latest (un)civil miscreant being imprisoned for 18 months for various misdeeds. In the FtT, some timely advice saw the client off the hook as the other side were cornered into withdrawing their application once it dawned on them that they had been trying to land the wrong respondent. Paperwork included, somewhat strangely, an application to undo a possession order obtained by the client in error!
John de Waal KC is instructed in relation to a dispute about a promotion agreement where the land has a GDV of £140m.
Jamal Demachkie has spent January arguing ground (g) in a disputed 54 Act renewal, and advising on (and then lecturing on) overage agreements. He has filled the rest of his time with his usual forfeiture hearings.
Cameron Stocks’ January largely revolved around service charge disputes from challenges in the FtT about major works on a development in South London to arguments about the service of county court proceedings for the recovery of service charges when a lessee’s bail conditions prohibit him from residing at the property in question. He has also been advising on the obligations of a railway company to maintain level crossings under the Railway Clauses Consolidation Act 1845.
Andrew Skelly spent a very interesting week as a guest of the Abu Dhabi Judicial Department. Back in the UK, he has been advising a local authority regarding easements potentially enjoyed by a large residential development over a road owned by the local authority (which is not an adopted public highway). In addition, he has advised a substantial land owner as to its rights and obligations in relation to various roads adjoining some of its properties.
Carl Brewin kicked off the new year with not one but two muddy site views. It nearly didn’t rain for both of them. Back indoors and in trial he then dealt with the sad tale and unfortunate repercussions of a lawyer imposter fraudster, before ending the month with some good old missing landlord enfranchisement. It’s always easier when the other side doesn’t turn up!
A hectic start to the year for Monty Palfrey, who appears to be playing “Top Trumps” on hearings in cathedral cities: Birmingham, Bradford, Norwich, Peterborough, Portsmouth, Truro and York so far this year. All this whilst dealing diet of pub cases, enfranchisement, disrepair and obtaining a trespass injunction to cover all buildings belonging to a non-campus university.
Comment: Arthur Moore - Time for appealing in the FtT: When does time start to run?
Iris Hylsop v 38-41 CHG Residents Co Limited [2017] UKUT 398 (LC)
Overview
The Respondent to an application in the First-tier Tribunal (FtT) is entitled to apply to appeal a decision made against it under Rule 52 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (‘the Rules’) or, in certain circumstances, to apply to set aside the decision under Rule 51. In either case the time limit of 28 days is triggered when “the Tribunal” sends notification of its decision, or the written reasons.
The obligation to provide a written decision and reasons is found in Rule 36(2) which provides: “the Tribunal must provide to each party… a notice stating the Tribunal’s decision [and] written reasons for the decision”. However, Rule 6(3)(d) expressly gives the FtT the power to require a party to provide documents, information or submissions to the FtT itself or to another party, and Rule 16(2)(b) further provides that the FtT itself can provide any document (including a notice or summons or other information) under the Rules by requiring a party to do so.
Comment: Steven Woolf - Fly-tipping: New strategies to turn the tide
London Borough of Enfield v Persons Unknown
Flytipping is an increasing social problem. “Commercial” fly-tipping (ie fly-tipping undertaken on a massive scale by recurrent offenders rather than one person moving flat and leaving their mattress in an alley) is becoming not only a social problem but also an enormous financial headache for those on whose property the fly-tipping ends up.
Steven Woolf has been at the forefront of the battle against these highly organised commercial fly-tippers. The battle started with Steven acting largely for local authorities to protect hundreds of green spaces in and around London. The strategy has been to obtain preventative injunctions against encampments and fly-tipping which make any breach a contempt of court and therefore subject to fines, seizure of assets and prison by way of a swift court procedure (see Steven’s article – “The future approach – using a preventative injunction to protect green spaces”).
Lina Mattsson: Did you see? You may have missed...
Sloane Stanley Estate Trustees v Mundy [2018] EWCA Civ 35
Lease extension – marriage value – valuation – “Parthenia model”
The Court of Appeal dismissed the lessee’s appeal against the UT’s rejection of the so-called “Parthenia model” for calculating the marriage value element of the premium payable for a lease extension under the Leasehold Reform, Housing and Urban Development Act 1993. The Parthenia model provides that one should calculate the existing lease value relative to market value (relativity), upon the statutory assumption that the existing lessee has no statutory right to renew. In this case the flat’s “real-world value” was not in issue, as there had been an actual sale of the same lease within a week of the valuation date. Dismissing the appeal, the Court of Appeal held that a valuation was question of fact for the tribunal. Therefore, whether to accept Parthenia was a question of fact, not one of law. Property valuation usually proceeded by comparison with appropriate adjustments. The fewer differences there were between the comparable and the subject of the valuation, the greater the weight that could be given to the comparable. In this case the comparable of the same lease sold almost exactly at the valuation date only had to be adjusted to reflect the difference between a lease with rights under the Act and a lease without rights. There was nothing legally impermissible in making an adjustment to reflect a statutory assumption.
The Court of Appeal further held that the test for grant of permission to appeal from the UT exercising original jurisdiction is the ordinary first appeals test and not the second appeals test.
Assethold Ltd v Abdelhadi [2018] UKUT 22 (LC)
Costs – s 146 costs provision – evidence of costs incurred in contemplation of forfeiture.
Proceedings had originally commenced in the county court seeking judgment in respect of ground rent, service charges and administration charges. Judgment in default was entered and a section 146 notice served; the sums demanded were then paid. The tenant disputed liability to pay the costs of the proceedings. The only costs provision in the lease was a section 146 provision. The FtT held that there was no evidence that the costs had been incurred in contemplation of forfeiture. The UT disagreed. The landlord had sent a letter to the tenant headed “Notice of Proceedings”. It noted the tenant’s failure to make payment; it explained that when the tenant was in default, the freeholder had a right to forfeit the lease and take possession of the flat, and said that “you have left us no choice but to apply to the court for “possession judgement” on your flat”. The UT held that this was sufficient to evidence costs were incurred in contemplation of forfeiture and the costs were therefore recoverable under the lease.
Khoury v Kensell [2018] EWHC 217 (Ch)
Building scheme – injunction – summary judgment
Brie Stevens-Hoare KC and Lina Mattsson successfully defended a decision to summarily dismiss the appellant’s claim for an injunction to demolish part of the respondent’s home for alleged failure to comply with restrictive covenants. The appellant argued that there was a building scheme in place which allowed them to enforce the covenants. On appeal, the appellant sought to introduce new evidence in support of their claim. Mr Justice Zacaroli allowed the appellants’ application to introduce evidence not before the court below, but dismissed the appeal. He held that even when considering the further documents and taking a commercial view of the purpose of the covenants in the conveyances, there was insufficient indication of an intention to impose mutual covenants. Further, it would be wrong to refuse summary judgment because the appellants claim that some further evidence of the building scheme may turn up before the trial.
Victory Place Management Co Ltd v Kuehn [2018] EWHC 132 (Ch)
Consent for a dog – unreasonable refusal – Wednesbury unreasonableness
The appellants purchased a long leasehold flat. The lease contained a covenant prohibiting pets without the written consent of the management company. The appellants requested formal consent to keep their dog, which was refused. They ignored the refusal. The management company obtained an injunction to have the dog removed. The appellant argued that the refusal had been unreasonable. It was common ground that there was an implied obligation on the management company that when reaching its decision it should only to take into account matters that it ought to have taken into account and not to take into account matters which ought not to have been considered, applying the first limb of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Sir Geoffrey Vos held that the management company’s strict “no pets” policy, save in special circumstances was not an illegitimate predetermination to make a particular decision. The respondent had complied with its implied obligation under the lease to deal reasonably with the request and was entitled to take into account the majority view of the lessees who elected its board.
‘How to rent’ booklet
The MHCLG ‘How to rent’ booklet was updated on 17 January 2018. It removed references to the ‘London Rental Standard’. It is likely that there will be further updates of the booklet in the near future.
"Hardwicke Unrobed" - Get to know us better
Each month, a member of the Hardwicke property team gives us three facts about themselves. But only two are true. Can you guess which two? Below, Edward Rowntree gives us his three facts – the answers will be revealed next month. But first, Katrina Hanstock explains which fact was false last month:
- Katrina holds the record for the East Sussex County 800m under 13s race.
- Katrina has travelled to every country in Europe.
- Katrina was once given an award having been chosen as “inspirational girl of the year”.
Katrina Explains which fact was false last mouth.
- True – I ran this race when I was 12 and obtained the obviously world record breaking time of 2 minutes 41 seconds. I am told by a reliable source (a.k.a. my old PE teacher) that I still hold this record. I am somewhat dubious and expect this is a only a technicality and more likely due to poor record keeping but until told otherwise, I am going to take every victory!
- False – Despite my charming colleagues’ belief that I spend more time on holiday than in chambers, I have only managed 15 of the 28 countries in the EU.
- Unfortunately this is true. When I was 14 I was given the award of “Inspirational Girl of the Year” by a teenage girl magazine (which I hope has since gone out of print…) called “Sugar Magazine”. The award was for my work campaigning for compulsory sex and relationships education and improving the provision of sexual health advice given in family planning centres. Suffice to say this award did not make me any more popular at school!
Edward Rowntree’s facts:
- I took a girlfriend to Oxford for a romantic day out of London but left her there when I was invited to sing live on stage at the Royal Albert Hall next to Jose Carreras.
- I had morning tea with Lord Denning and his wife at his home in Whitchurch. He showed me an early version of Culpeper’s Complete Herbal and became embarrassed when every page he turned to provided a cure for wind.
- Although I only learned to ski when I joined chambers, I have skied the Streif run at Kitzbuhuel faster than Graham Bell.
Contact us
If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team:
Deborah Anderson, Practice Director
James Duncan-Hartill, Senior Practice Manager
Patrick Sarson, Practice Manager
To find out more about our Property Team and their work, please visit the Property page on our website.