Legal News

Property Disputes weekly highlights—22 July 2021

Published on: 22 July 2021
Published by: LexisPSL
  • Property Disputes weekly highlights—22 July 2021
  • In this issue:
  • Coronavirus (COVID-19)
  • Modifications to possession procedures extended until November
  • Coronavirus (COVID-19)—updated guidance for enforcement agents in England
  • BPF comments that huge barriers could undermine plan to ‘level up’
  • HMCTS publishes updated operational summary for week commencing 19 July 2021
  • Enfranchisement and right to manage
  • Law Commission publishes annual report
  • Enforcing security and property insolvency
  • More...

Article summary

This week's edition of Property Disputes weekly highlights includes: a summary of recent measures and guidance on coronavirus (COVID-19), various updates to the Civil Procedure Rules including an extension of the modifications to possession procedures contained in CPR PD 55C, publication of the Law Commission’s annual report, decisions regarding the effect of dissolution of foreign companies with freehold interests in land, the effect of escheat, a Court of Appeal case examining the discretion available to the Valuation Tribunal for England to alter the valuation list, and High Court decisions concerning a claim for a declaration that a deed of priority had been a forgery, restraining a party from exercising its contractual right to an expert determination, and the grant of an interim injunction preventing trespass. or take a trial to read the full analysis.

Property Disputes weekly highlights—22 July 2021


In this issue:

Coronavirus (COVID-19)

Enfranchisement and right to manage

Enforcing security and property insolvency

Disputes and remedies

Trespass and adverse possession

Repairing obligations and dilapidations

Rent and rates

UK/EU divergence – have your say

Daily and weekly news alerts

New and updated content

Dates for your diary

Trackers

New Q&As


Coronavirus (COVID-19)

Modifications to possession procedures extended until November

The Courts and Tribunals Judiciary (CTJ) has confirmed that pursuant to the 133rd Practice Direction update, the modifications to possession procedures in CPR 55 contained in CPR PD 55C have been continued until 30 November 2021 due to the coronavirus (COVID-19) pandemic. This comes as part of the Civil Procedure (Amendment No 4) Rules 2021, SI 2021/855 and 133rd Practice Direction Update, which also included amendments to rules on recording in court, payments, communications and filing documents by email, and striking out counter claims. See: LNB News 20/07/2021 11.


Coronavirus (COVID-19)—updated guidance for enforcement agents in England

The Ministry of Justice, with help from Public Health England, has updated the guidance for enforcement agents in England detailing how to work safely using the Taking Control of Goods process during the coronavirus (COVID-19) pandemic. The guidance applies to both public and private enforcement agents, their employers and the creditors who use their services. The guidance has been updated following the substantial lifting of coronavirus restrictions on 19 July 2021. See: LNB News 21/07/2021 45.


BPF comments that huge barriers could undermine plan to ‘level up’

The British Property Federation (BPF) has called for Ministers to deal with the barriers which stand to undermine the Prime Minister’s plan to level up the country. The BPF supports the plan but suggests that issues including commercial rent moratoriums, abusive company voluntary arrangements and punitive business rates may deter the crucial private sector investment needed for its success. See: LNB News 16/07/2021 97.


HMCTS publishes updated operational summary for week commencing 19 July 2021

HM Courts & Tribunals Service (HMCTS) has updated its operational summary on courts and tribunals operations during the coronavirus (COVID-19) pandemic. The summary for the week commencing 19 July 2021 includes updated guidance on court operations following the easing of coronavirus restrictions on 19 July 2021, new courts going live and further updates to MyHMCTS. See: LNB News 19/07/2021 23.


Enfranchisement and right to manage

Law Commission publishes annual report

The Law Commission has published its annual report for 2020–2021. The report details the work undertaken by the Law Commission over the past year, which included launching a consultation on its 14th Programme of Law Reform and its reports in July 2020 on leasehold enfranchisement, right to manage and commonhold.

Enfranchisement, right to manage and commonhold

The report confirms that on 7 January 2021, following Law Commission reports in July 2020 relating to enfranchisement, right to manage and commonhold, and in January 2020 on the price paid on enfranchisement, Housing Secretary Robert Jenrick indicated that it was the Government’s intention to proceed with reforms that were based on some of the options set out in the January 2020 report and recommendations set out in the July 2020 report on enfranchisement. The Law Commission confirmed that the government is continuing its work considering the remainder of the Law Commission’s recommendations. The Law Commission confirmed that in the meantime, and to assist the government, it is undertaking preliminary work, such as preparing instructions to Parliamentary Counsel, that will be necessary to implement the options and recommendations that the government has said it will proceed with. The Law Commission is also undertaking preliminary work that will be necessary if the government accepts the remainder of its recommendations in due course.

In addition, the Law Commission confirmed that in March 2021, the Minister for Housing and Local Government in the Welsh Government had indicated her ‘support [for] the approach set out by the Law Commission recommendations’ and that it was her intention to ‘[seek] the UK Government’s agreement that…officials work together to explore a joint approach to legislation enacting the Law Commission’s recommendations’.

The Law Commission further confirmed that Professor Nick Hopkins (Commissioner for Property, Family and Trust Law) has been appointed to the Commonhold Council’s Technical Support Group.

Easements, covenants and profits à prendre

The annual report confirms that, at the government’s request, it is reviewing and updating its draft legislation given the passage of time (the Law Commission’s final report ‘Making Land Work: Easements, Covenants and Profits à Prendre’ and a draft Bill were published on 8 June 2011) and to take into account the implications of the government’s planned reforms of residential leasehold.

Land Registration Act 2002

In its full response on 25 March 2021, the government welcomed the Law Commission’s examination of the Land Registration Act 2002. It accepted 40 of the 53 recommendations and was further considering another ten recommendations on which it has not yet reached final conclusions. In its annual report, the Law Commission confirmed that the government has indicated that it will consider implementation alongside wider land registration, policy development and HM Land Registry business strategy priorities.

Termination of tenancies for tenant default

In March 2019, the Housing, Communities and Local Government Select Committee recommended that the government implement the Law Commission’s recommendations. In response the government asked the Law Commission to update its report. In the annual report, the Law Commission confirmed work on that has been undertaken during the reporting year, and is ongoing.

Rights to light

The annual report indicates no movement on this.

See: LNB News 21/07/2021 90.

Source: Annual report 2020-21 published.


Enforcing security and property insolvency

Escheat, overriding interests and actual occupation (Rock Ferry Waterfront Trust v Pennistone)

In Rock Ferry Waterfront Trust v Pennistone Holdings Ltd [2021] EWCA Civ 1029, [2021] All ER (D) 41 (Jul), the Court of Appeal dismissed an appeal from the order of His Honour Judge Hodge QC, by which the first instance judge had awarded possession of a plot of land to the claimant/respondent; and had dismissed the appellant’s counterclaim for a declaration that it was entitled to be registered as proprietor of the said land. Among other things, this case discusses when a person will be in actual occupation of land even though they do not themselves occupy the same and when it will be sufficient for a party to establish actual occupation via the occupancy of a caretaker or agent. In addition, the case provides helpful guidance as to the fate of land which is owned by a company incorporated otherwise than in accordance with the laws of England and Wales; in circumstances where that company is dissolved while at the same time owning land in England and Wales. Written by Christopher Snell, barrister at New Square Chambers. See News Analysis: Escheat, overriding interests and actual occupation (Rock Ferry Waterfront Trust v Pennistone).


What happens to easements on escheat of a freehold to the Crown? (Pall Mall 3 Ltd v Network Rail)

At the interface of company law, insolvency law and land law—what happens to easements benefiting a freehold estate, when the freehold terminates on escheat to the Crown under section 1013 of the Companies Act 2006 (CA 2006)? The issue in Pall Mall 3 Ltd v Network Rail [2021] EWHC 1835 (Ch) was whether the destruction of the freehold estate, meant that the land lost the benefit of easements which had accrued to the land while there was a freehold estate in existence. Answer—no. Written by Tim Morshead QC, barrister at Landmark Chambers, who acted for Pall Mall 3 Ltd in the case. See News Analysis: What happens to easements on escheat of a freehold to the Crown? (Pall Mall 3 Ltd v Network Rail).


Disputes and remedies

CPR changes and 133rd practice direction update

Various upcoming Civil Procedure Rules (CPR) changes have been provided for by the Civil Procedure (Amendment No 4) Rules 2021, SI 2021/855. The changes to CPR 83.8A(2), on notices of eviction, come into force on 7 August 2021 and all other amendments from 1 October 2021.

The Ministry of Justice has also signed the 133rd update—practice direction amendments, which makes amendments to various practice directions supplementing the CPR. The amendments, which come into force variously on 18 July 2021 and 1 October 2021, cover the following practice directions: CPR PD 4, CPR PD 5B, CPR PD 25B, CPR PD 51O, CPR PD 51U, CPR PD 52B, CPR PD 52D, CPR PD 55C, CPR PD 56, CPR PD 61, CPR PD 70 and CPR PD 74A. See New Analysis: CPR changes and 133rd practice direction update—various.


134th practice direction update—20 July 2021

The 134th practice direction update makes changes to CPR PD 51R (Online Civil Money Claims Pilot (OCMC)) that came into force on 20 July and provide for certain circumstances in relation to paper responses. The amendments apply in relation to all claims submitted to the court on or after 11 am on Tuesday 20 July 2021. See News Analysis: 134th practice direction update—20 July 2021.


Minutes of the CPR Committee meeting—11 June 2021

The minutes of the CPR Committee (CPRC) meeting of 11 June 2021 (held via video conference due to the ongoing coronavirus (COVID-19) pandemic) cover a number of areas including the proposed amendments to accommodate the Renting Homes (Wales) Act 2016, the proposal for a new mechanism for Environment Reviews within the CPR, the addition of the Queen’s Bench District Registries to the Electronic Working Pilot Scheme under CPR PD 51O, the proposed works programme to simplify the CPR, the clarification of the procedure for giving further notice of eviction, the Working Group on Possession Proceedings, further considerations of the lacuna sub-committee (LSC), the anticipated content and timescales of the summer CPR Update cycle, updates regarding whiplash reform, Civil Justice Council meetings, the Online Civil Money Claims (OCMC) and Damages sub-Committees, the migration of online CPR from the GOV.UK website, plans to return to in-person Committee meetings, and the progress made on the Part Transfer of Deeds Poll. See News Analysis: Minutes of the CPR Committee meeting—11 June 2021.


Claimant failed to establish case that deed of priority was forgery (Karunia Holdings Ltd v Creativityetc Ltd)

In Karunia Holdings Ltd v Creativityetc Ltd [2021] EWHC 1864 (Ch), [2021] All ER (D) 63 (Jul), the defendant applied for summary judgment against the claimant's claim for a declaration that a deed of priority had been a forgery. The Chancery Division, granting the application, held that the claimant did not have any real prospect of successfully establishing its case based on forgery with the degree of conviction necessary to satisfy the test in CPR 24.2(a).


Injunction granted restraining a party from pursuing an expert determination (Maypole Dock Ltd v Catalyst Housing Ltd)

In what appears to be a fairly novel application, the Technology and Construction Court (TCC) has granted an injunction in the case of Maypole Dock Ltd v Catalyst Housing Ltd [2021] EWHC 1742 (TCC), restraining a party to a dispute from exercising its contractual right to an expert determination. The injunction was granted in circumstances where litigation in respect of the same dispute was before the court and was subject to a pending jurisdictional challenge. Written by Phillip Patterson, barrister, Hardwicke. See News Analysis: Injunction granted restraining a party from pursuing an expert determination (Maypole Dock Ltd v Catalyst Housing Ltd).


Trespass and adverse possession

Injunction applying Canada Goose principles (Gitto Estates Ltd (trading as Horizon Properties) v Persons Unknown)

In Gitto Estates Ltd (trading as Horizon Properties) v Persons Unknown [2021] EWHC 1997 (QB), [2021] All ER (D) 56 (Jul), the claimant company, which owned a property that was rented to an individual (Ms N), was granted an interim injunction, preventing: (i) entry on to the claimant's property and threats to fight those who were lawfully working there; graffitiing the claimant's property; and spitting and throwing eggs or other projectiles at the claimant's property. The Queen's Bench Division so ruled in circumstances where there had been protests, arising from a campaign intended to obtain Ms N's release from her rental contract with the claimant. In granting the interim injunction, the court considered the correct approach to restrictions that interfered with arts 10 and 11 of the European Convention on Human Rights, as reviewed in DPP v Ziegler [2021] All ER (D) 70 (Jun).


Repairing obligations and dilapidations

The Building Safety Bill July 2020—does it deliver on promises to leaseholders over costs of remediation?

The long-awaited Building Safety Bill has now been published by the government. However, it has been criticised for not going far enough to protect leaseholders, especially in relation to the recovery of costs for remedial works. Sue Ryan, partner, and Cathy Moore, PSL principal associate, both of Gowling WLG, share their thoughts on the most contentious parts of the Building Safety Bill and what leaseholders, developers and landlords should be aware of. See News Analysis: The Building Safety Bill July 2020—does it deliver on promises to leaseholders over costs of remediation?.


Rent and rates

Discretion in altering the valuation list (Avison Young Ltd v Jackson (Valuation Officer))

The appeals in Avison Young Ltd v Jackson (Valuation Officer) [2021] EWCA Civ 969, arose from challenges originally made to decisions of a Valuation Officer (VO) determined at first instance by the Valuation Tribunal for England (VTE) and affirmed by the Upper Tribunal (Lands Chamber). The Court of Appeal examined the exercise of the discretion available to the VTE under the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedures) Regulations 2009, SI 2009/2269, reg 38(7). This provides that where circumstances giving rise to an alteration to a valuation list ordered by a VTE have ceased to exist, the order can require the list to be altered for such period as appears to the VTE to reflect the duration of those circumstances. The purpose of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedures) Regulations 2009, SI 2009/2269, reg 38(7) is to enable the VTE to direct temporary alterations to the valuation list wherever circumstances justifying those alterations are in existence (Sykes(VO) v Great Bear Distribution Ltd (GBD) in the interests of justice. Written by Alan Murdie, specialist in council tax at Council Tax Legal Services. See News Analysis: Discretion in altering the valuation list (Avison Young Ltd v Jackson (Valuation Officer); Moore (Valuation Officer) v Great Bear Distribution Ltd).


UK/EU divergence – have your say

Please click here to participate in our Customer Survey – UK/EU Divergence. The aim of the survey is to gather insight into customer needs and preferences for PSL coverage of how UK law diverges from EU law arising from the UK’s departure from the EU. The survey also covers potential for divergence within the devolved administrations of the UK (in areas where EU previously had competence), as well as needs around EU materials going forward. It should take around 20 minutes to complete.


Daily and weekly news alerts

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New and updated content

Updated Practice Notes

● Dealing with goods left behind at lease end or following sale of property

● Escheat, bona vacantia and disclaimer by the Crown

● Fixtures and fittings


Dates for your diary

4 August 2021End of consultation on implementing the Telecommunications Infrastructure (Leasehold Property) Act 2021. See LNB News 09/06/2021 70.
30 September 2021End of the ‘relevant period’ under CA 2020, Sch 29, during which revised periods of notice for obtaining possession of residential properties in England and Wales are in force. See: Coronavirus (COVID-19)—implications for property — Residential tenancies—protection from eviction in England and Wales—CA 2020, s 81 and Sch 29
End of restrictions on the presentation of winding up petitions. See LNB News 17/06/2021 15 and LNB News 21/06/2021 66.
End of restrictions on forfeiture of a commercial lease for non-payment of rent and CRAR in Wales. See: Coronavirus (COVID-19)—implications for property — Restrictions on forfeiture of commercial tenancies.
30 November 2021End of modified procedure for possession claims under CPR PD 55C. See Practice Note: Coronavirus (COVID-19)—implications for property — Possession claims.
25 March 2022End of restrictions on forfeiture of a commercial leases for non-payment of rent and CRAR in England. See: Coronavirus (COVID-19)—implications for property — Restrictions on forfeiture of commercial tenancies.

Trackers

The report stage of the Leasehold Reform (Ground Rent) Bill [HL] took place on 20 July 2021. LNB News 13/05/2021 12.

The second reading of the Building Safety Bill took place in the House of Commons on 21 July 2021. See LNB News 06/07/2021 7.

● Property key future developments tracker

● Property case tracker—2021

● Dispute resolution: key appeal cases—2021


New Q&As

● If a headlease is surrendered and re-granted with a larger area demised, what would happen to the underlease?

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