Property Newsletter: June 2020

Introduction

Welcome to the June 2020 edition of the Property Newsletter from Hardwicke. Summer is coming (or has it already been and gone?). Whether your destination this year is just the garden or (fingers and toes crossed) somewhere much further afield, it’s hard to keep concentrations up.

This month Peter Petts gives us practical guidance on the traps associated with statutory restrictions on the right to forfeiture and determinations of breach under section 168 of the Commonhold and Leasehold Reform Act 2002.

Lina Mattsson discusses R. (on the application of HCP (Hendon) Ltd) v Chief Land Registrar [2020] EWHC 1278 and to what extent a purchaser of land can rely upon the property registers of the relevant titles without reference to other documents and Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760 which has given landlords some relief in relation to gas safety certificates and service of s. 21 notices.

And Morayo Fagborun Bennett spins the wheel of questions for us.

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

The next newsletter will be around the end of September 2020. From all the team at Hardwicke we wish you and your family a good summer and restful break.

Carl Brewin – Editor

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

In addition to working on a High Court Injunction to restrict unlawful occupation of land through which HS2 is travelling, Steven Woolf has protected a range of landlords and tenants from the risk of litigation as well as settled a long running boundary dispute.

John de Waal KC has been trying (and failing) to set aside an expert determination and is preparing for a five-day trial in July on a Charities Act point.

Cameron Stocks has spent most of the last month working on a private client/agricultural property dispute with an upcoming four-day trial in the High Court in Bristol. The trial is taking place through both Microsoft teams and a socially distanced courtroom with six lawyers and 13 witnesses. What could possibly go wrong?

Brie Stevens-Hoare QC has been considering rectification, adverse possession, dilapidations, conditional contracts and fiduciary duties in management agreements. So variety is the spice of life for Brie at the moment, maybe that is why she’s in such a good mood.

Andrew Skelly has been making use of his newly installed multi-screen set up, with a remote arbitration.  Unfortunately, none of the County Courts seem to have video, and so all the hearings Andrew has been involved in have been by telephone.  At least two hearings ended prematurely when the court’s system fell over, and the hearing had to resume the following week.  Quoting D Ream…

Monty Palfrey has had a month looking at and advising on covenants of various forms (freehold and leasehold) and the practicality of enforcing the same in the current situation and once the recently extended stays have expired.

Lina Mattsson has had a month of restrictive covenants and unlawful withholding of consent. She has also advised on terminal dilapidations, adverse possession and noise nuisance. But mostly Lina has been daydreaming of her upcoming day-trip to the beach. Buckets and spades are packed!

Katrina Mather has had a healthy mix of remote hearings and advisory work. Highlights have included dealing with a hotly contested boundary dispute and disrepair claim. She has also had her usual bag of advising landlord and tenants in commercial premises who are affected by insolvency procedures and has been closely following the speedy progress of the Corporate Governance and Insolvency Bill to this end!

Daniel Gatty and James Hall did battle in a three-day trial by Skype for Business about rectification of a commercial lease.  The process was relatively smooth, though Daniel emerged the victor…well, someone from Hardwicke had to win!

This month Morayo Fagborun Bennett has started preparing for the Court of Appeal hearing in Sara and Hossein v Blacks, which is due to be heard in the autumn term. The case concerns whether a commercial lease is to be interpreted as making a landlord’s certificate of service charges binding on questions of construction/law because of the interrelation between a no set off clause and the certification clause. Morayo was also successful in a County Court appeal concerned with the interpretation of section 214 of the Housing Act 2004.

Jamal Demachkie has been debating the finer points of the Pubs Code and MRO leases in the High Court.  He has also been advising on a couple of development agreements involving options and overage… green shoots perhaps?

Events

The Hardwicke Team have successfully launched its #HarwickeBrew series on Zoom, an informal chat that lets you in to our team’s thoughts and discussion surrounding current issues and practical challenges practitioners and their clients are facing. Wandering children and/or pets are very welcome…bring your own hot drink!

Upcoming Brews and Zoom Sessions

2 July 2020: #HardwickeBrew – Property – Forfeiture (Part 2) 

Previous #HardwickeBrews and Zoom Sessions

#HardwickeBrew – Property – Interim Injunctions – Covid or not Covid

#HardwickeBrew – Property – (Near) Futurology – What does the (near) future hold after the extension of PD51Z?

#HardwickeBrew – Property – Waiver of the right to forfeit

#HardwickeBrew – Property – Boundary Disputes – “It started with (A chat over the garden fence)”. The chorus continues: “I never thought it would come to this”

Enforcing & Escaping Property Transactions – Contractual Termination, Rescission & Specific Performance

If you would like copies of the #HardwickeBrew Takeaway Cups from all the #HardwickeBrews that have taken place or a copy of the handouts from either of our recent Zoom seminars, please click here.

Lina Mattsson: Did you see? You may have missed...

R. (on the application of HCP (Hendon) Ltd) v Chief Land Registrar [2020] EWHC 1278 

Reliance upon Official Copy Entries – Extent of the demise – Leases

The case dealt with the question of to what extent a purchaser of land can rely upon the property registers of the relevant titles, without reference to other documents, and in particular any leases mentioned in the property register, with respect to the extent of the demise of the registered properties in question.

The facts

The building comprised of a ground floor and first floor. There were 14 flats held on long leases. Each register for the existing first-floor leases contained a ‘floor level note’ stating “Only the first-floor is included in the title” or words to a similar effect. Each of the leases included a detailed description of the demised property at Schedule 1 which expressly included the roof and roof space.

The freeholder had obtained planning consent to build a second floor. It granted a lease of the second floor to the claimant, who intended to undertake the construction. Under the lease, the freeholder demised to the claimant the area above the joists or beams of the ceilings of the first-floor flats including the roof and roof space.

When the claimant applied to register the lease, the Land Registry informed it that the roof and roof space had already been demised in the leases of each of the first-floor flats. It therefore proceeded to register the second-floor lease as a concurrent lease, thus subject to the existing first-floor leases for their duration so far as the overlap in the demises was concerned.

The claimant applied for judicial review of the Land Registry’s decision.

The Decision  

The claimant argued, amongst other things, that the Land Registry’s decision should be quashed because the property register for the first-floor flats described the extent of those estates as “the first floor only” with no mention of airspace above the first floor. The claimant argued that it was entitled to rely on the register, without having to inspect the leases noted against the register.

Mr Justice Spencer disagreed. He held that it is necessary to examine both the register and any leases noted against it to determine the extent of any demise. The register gives a general description of the title and location of any existing leases but, if the person inspecting the register wants to know the precise boundaries of those leases, including whether the demise extends vertically to the roof and roof space, they needed to inspect the leases too.

The claimant’s argument that the Registrar had effectively explicitly excluded the roof and roof space by using the word “only” in the property register for each of the first-floor flats was rejected. Mr Justice Spencer noted that being a plan from above, the delineated blue part would, without more, also include the ground floor flats. It was for this reason that the register specifically stated that only the first-floor maisonette was included in the title: by these words, the registrar made it clear that it was not intended to include the ground floor; the inclusion of these words was not intended, nor did they have the effect, of thereby excluding the roof and roof space from the demised areas.

In the case of a first-floor flat in a two-storey property, Mr Justice Spencer noted that it would normally be expected that the roof and roof space above the flat would be included in the demise in the lease. While it was a discretionary matter for the registrar on a case-by-case basis, the court might potentially expect them to put specific words on the face of the register if the roof and roof space were specifically excluded from the demise in the lease, but not otherwise.

Conclusion  

The Registrar has a discretion as to what should be included on the face of the register itself and what should be left to be discovered by an inspection of the lease. It follows therefore that a purchaser or person inspecting the register must examine any lease noted against the register to determine the boundaries, including whether the demised land extends vertically and horizontally. One cannot rely simply on what is contained on the face of the register. The same principle does not doubt apply to other interests affecting land, including easements and restrictive covenants.

Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760  

The long-waited Gas Safety Certificate judgment is out. The Court of Appeal concluded that the failure to provide a gas safety certificate prior to a tenant taking up occupation is remediable. It follows that a landlord can serve a s.21 notice as long as the Gas Safety Certificate has been given to the tenant before the landlord serves the s. 21 notice.

Good news for landlords, but two questions were left open by the judgment. The first is what happens if a landlord has not done a gas safety check at all for the period before the tenant went into occupation. The second is what happens if the landlord fails to do the annual gas safety inspection, although the judgment did consider that the duty to carry out a safety inspection annually is not a prescribed requirement before a s. 21 notice can be served.

“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, Morayo Fagborun Bennett tried her luck with the wheel.

What’s one thing a parent taught you that completely changed your life? 

My mum is one of the hardest working people that I have ever met. She is bright, generous and determined. She taught me by doing. It was no surprise to me when she received an MBE for services to community cohesion and the rights of women and girls. When things get tough, I remember her belief in me and my ability. I remember that I am enough and to breathe and carry on.

What’s been on your mind lately? 

Lockdown has reminded me of the simple pleasures that you take for granted and the need to embrace new experiences instead of putting them off. Last Christmas, we went to New Orleans with my best friend and her family. The people and weather were warm, the food was delicious and each morning, I was able to have a swim in the hotel pool whilst the rest of my family slept. Bliss!

What is a dream you have that you’ve yet to achieve? 

When I was at university, I dreamed of joining the United Nations so that I could make a real difference. My ambitions changed but I hope that having now been appointed as a Deputy District Judge and a Chair of the Valuation Tribunal, I will fulfil that dream.

Want to try for yourself?

Click on the wheel below!

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