Introduction
With Spring in the air and the sky turning blue what could be better than a property law update or two?
This month we have an article about what amounts to reasonable refusal to consent to alterations by Victoria Dacie-Lombardo and in “Have you missed…” Lina Mattsson discusses the recent case of Nazir v Begum [2024]. In our “2 Minutes With” we find out all about Adam Smith-Roberts‘ unusual path to the bar.
After a month off editing this newsletter I feel positively refreshed… so back to Building Safety. Here is my update:
Building Safety
A recent case:
The BSA boffins amongst us will no doubt already be aware of the 19/1/24 FTT decision about fire safety work and the resulting remediation contribution order at at Olympic Village. In Triathlon Homes LLP v Stratford Village Development Partnership (SVDP) (1) Get Living Plc (2) East Village Management Limited (3) [2024] UKFTT 26 (PC) the key issue was whether it was “just and equitable” to make the remediation contribution order for important fire safety works that was needed on 5 high rise blocks.
In short, the FTT, comprised of Mr Justice Edward Johnson and Martin Rodger KC, found that Triathlon was entitled to the remediation contribution order against SVDP and Get Living.
When looking at what can be covered by a RCO, the FTT found that “...any measure which causes a building safety defect to cease to be a relevant defect…is capable of being the subject of a remediation contribution order” [107].
Although each case will turn on its own facts, there were many interesting nuggets of information about what this tribunal were looking for when considering the just and equitable test, including:
- It is “obvious” the the test should be exercised with the purpose of the BSA in mind [237] and BSA policy is that there is a hierarchy for the cost of remediation and it should first fall on the original developer [265]
- A RCO can be non-fault based [261 and 256]
- An applicant’s motivation will not “usually be of much significance” [246 and 271] nor does the availability of other remedies, whether contractual or otherwise, disqualify it from applying for a RCO [261 and 262]
- It was not a reason to not make the order just because a claim could be brought against original contractors [272]
- That remedial works were being funded by the Building Safety Fund was at best a neutral point [273] and “it is difficult to see how it could ever be just and equitable for a party falling within the terms of section 124(3) and well able to fund the relevant remediation works to be able to claim that the works should instead be funded by the public purse” [278]
- Parties cannot “contract out” of this statutory regime [262]
- The FTT grappled with costs incurred on 3 sets of relevant works to date and, essentially found that it did have jurisdiction to make the RCO in respect of costs incurred before the 28 June 2022 implementation date [57 – 122].
When considering the just and equitable test from the Respondent’s position the following points were relevant:
- It is of no weight that the ultimate beneficial owners of SVDP and Get Living changed [251 to 254]
- The provenance or extent of a respondent’s assets or liabilities is unlikely to carry much weight when deciding whether it is just and equitable to make an RCO [255]
- Limited weight should be given to the ability or inability of a respondent to pass on liability to some other party but the fact that SVDP would be able to seek reimbursement was relevant to the justice and equity of making a RCO [256]
- It can be just and equitable to make a RCO against a parent company, in particular where it relies on that company for financial support [230 and 266]
Recent implementation instruments:
- 23 November 2023: waking watch replacement fund application deadline extended to 31 March 2024: https://forms.office.com/pages/responsepage.aspx?id=EGg0v32c3kOociSi7zmVqM6bzhedg7pCnP-lY5nd481UREFMRDE3T0NFS1dWNEU1TVFNNkRCMkpSWS4u
- 16 January 2024: The Building Safety Act 2022 (Commencement No. 6) Regulations 2024 (legislation.gov.uk) SI 2024/40 brought into force s79-88, 90-98, 101, 102 and 111of the BSA. This provides the framework for the ongoing duty to assess and manage safety risks in occupied higher risk buildings
- 16 January 2024: specified information and docs that the accountable person must keep and share as golden thread: The Higher-Risk Buildings (Keeping and Provision of Information etc) (England) Regulations 2024 No.41
- 28 January 2024: The Building Safety Act 2022 (Commencement No. 7 and Transitional Provisions) Regulations 2024 https://www.legislation.gov.uk/uksi/2024/104/made were laid which come into force on 6 April 2024
- 5 February 2024: register of higher risk buildings was supposed to open but I can’t find it – have you seen it?
What’s next – April 2024
- Transitional arrangements for Higher-Risk Buildings end
- Deadline for registering as Building Control Approvers and Building Inspectors – if don’t, from 6 April 24 it will be criminal offence to carry out building control work: The Building (Registered Building Control Approvers etc.) (England) Regulations 2024 (legislation.gov.uk); The Building (Restricted Activities and Functions) (England) Regulations 2023 (legislation.gov.uk)
- Operational Standards Rules for Building Control Bodies come into force
- Professional conduct rules for registering building control approvers and code of conduct for registered building inspectors come into force
- The building safety regulator is expected to start issuing building assessment certificates
As ever, if you have any suggestions or comments on what you’d like to see in this Newsletter please do not hesitate to get in touch with me
Laura Tweedy – Editor
News
The UK Commercial Property Litigation and Disputes Forum 2024
Jamal Demachkie spoke at the inaugural UK Commercial Property Litigation and Disputes Forum on 29 February 2024.
Jamal is the author of the definitive practitioners’ guide, ‘Forfeiture of Leases’ published by The Law Society.
He won the prestigious Real Estate Junior of the Year Award at the Chambers UK Bar Awards 2023, as well as Property and Housing Junior of the Year Award at the Legal 500 Awards in 2020 and 2022.
MIPIM
The Gatehouse Property team is really looking forward to meeting many of our wonderful clients in Cannes at MIPIM between 11-15 March 2024. Do get in touch if you or some of your colleagues will be there too and would like to meet up.
What have we been up to?
Laura Tweedy has had a month of varied trials, from unopposed lease renewals to service charge determinations to a property matter in the Court of Protection. Really nice to be in court so much. She is speaking on the Building Safety Act for Pro Conferences on 29/2/24. In her down time, she is researching interesting UK hikes if anyone as any good recommendations…
David Peachey settled an appeal shortly before it was due to be heard – he was looking forward to flying solo in the Court of Appeal… Now on to a fight over a ransom strip and a forfeiture claim.
Phil Marriott secured settlement for his client in a disrepair trial in which he was acting pro bono. He has also been advising on professional negligence by conveyancing solicitors and more disrepair, including tactics leading up to a disposal hearing.
Amongst other things, this month Jamal Demachkie has acted on a high value possession claim in the High Court and successfully mediated a Party Wall dispute. He is looking forward to speaking at the TL4 Commercial Property Forum on 29/02/24.
John de Waal KC is advising on a complex enfranchisement issue.
William Golightly continues to appear alongside James Hall in a long-running recission case involving the mistaken discharge of 5,500 charges at HM Land Registry. Beyond that, William has been advising, drafting and appearing in various landlord and tenant disputes.
Cameron Stocks is starting a 3-day proprietary estoppel trial in relation to *shock horror* a farming family dispute. The trial will take place somewhere in the Midlands, when Court listing finally decides where (only 24 hours to go!). When not dealing with farms, Cameron’s month has been service charge heavy, dealing with a long running dispute in which he is led by Emily Betts and Brie Stevens-Hoare KC.
Tricky TOLATA issues represent the continuing theme of Charlotte John’s start to the year. Following a lot of hard work and spirited negotiations, settlement was reached in what otherwise looked to be a particularly interesting trial next month involving a high value multi-property cohabitation dispute. As soon as that was off her desk, she was back into dealing with an accounting claim relating to a dozen properties over a 16-year period (where the litigation itself is approaching its 7th anniversary).
Daniel Gatty has been covering nearly all the bases this month – amongst other things, commercial tenancies, mortgages, boundaries, misrepresentation, professional liability, joint ventures and highways have all crossed his desk.
Victoria Dacie-Lombardo is currently away from Chambers, travelling around Hong Kong & Vietnam. Before she left for her trip, she continued to be kept busy by her misrepresentation / Housing Act 2004 penalties case. She was also pleased to receive permission to appeal in a case in which she is led by Lina Mattsson, regarding the effect of s.2 LP(MP)A 1989 and the purported sale of a property at auction.
Lina Mattsson has spent the month recovering after her three back-to-back trials in January. She has been advising on lease renewals, dilapidation claims and restrictive covenants, drafting two s 84 applications.
Brie Stevens-Hoare KC is very focused on fraudulent and sham transactions, the role of freeholders as statutory trustees of service charge monies and bitter boundary and easement disputes involving unpleasant harassment. Brie has also managed to break a few bones (not whilst bungy jumping) so she will be having a touch of FOMO when members of the team (and the Construction Team) are in MIPIM cos she has had to duck out.
Events
J2J Property Series
Gatehouse Chambers’ Junior Property Team are delighted to introduce their latest J2J webinar programme. The team will be offering practical hints and tips as well as updates on recent developments in the legal landscape in six key areas of real estate law.
Delegates can pick and choose which webinars they would like to attend, or register for all of them by getting in touch.
To register your interest please email events@gatehouselaw.co.uk.
Jacobs -v- Chalcot Crescent (Management) Company Limited [2024] EWHC 259 (Ch)
This month, Victoria Dacie-Lombardo looks at the decision of Mr Justice Fancourt in Jacobs -v- Chalcot Crescent (Management) Company Limited [2024] EWHC 259 (Ch).
This was an appeal from the decision of HHJ Hellman, in which the Judge had determined that it was reasonable for a landlord to refuse consent to alterations to a flat on the basis of an issue which did not form part of the landlord’s pleaded case, but had emerged during cross-examination and was subsequently advanced in closing submissions.
The decision is noteworthy for a number of reasons but particularly because it:
- Provides a useful reminder of the fundamental nature of statements of case in our adversarial, rather than inquisitorial, system and the importance of getting them right.
- Is authority for the proposition that even where it would, in principle, be reasonable for a landlord to refuse consent on a particular ground, if it requires professional advice in connection with the same, it must be reasonable to rely on the advice it has obtained.
- Clearly summarises the approach which ought to be adopted by the parties and the court when one party seeks, expressly or impliedly, to amend its case at a very late stage.
Click here to read the full article.
Did you miss? Nazir v Begum [2024]
The Appellants’ father had been the registered proprietor of land. He died intestate in 2010. The Appellants obtained letters of administration in 2019 and became the registered proprietors of the land in 2022. They issued proceedings against the Respondent seeking possession of the land. The Respondent’s case was that she had been in adverse possession of the land for at least 10 years and therefore had a defence under s 98 of the Land Registration Act 2002.
Read the full summary by Lina Mattsson here.
"2 minutes with" Adam Smith-Roberts
Contact us
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James Duncan-Hartill, Practice Director
Patrick Sarson, Senior Practice Manager
Jim Findley, Practice Manager
Adam Macdonald, Practice Manager
Samuel Read, Practice Manager
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This edition of the property newsletter was edited by Laura Tweedy. Comments or queries about this newsletter? Please get in touch with her!