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Property weekly highlights—15 April 2021

The following Property news provides comprehensive and up to date legal information on Property weekly highlights—15 April 2021

Agency—undisclosed commission—rescission—whether fiduciary relationship required (Wood v Commercial First Business)

The following Banking & Finance news provides comprehensive and up to date legal information on Agency—undisclosed commission—rescission—whether fiduciary relationship required (Wood v Commercial First Business)

Court refuses to imply term regarding timescale for service of break notice (Wigan BC v Scullindale Global Ltd)

The following Property Disputes news provides comprehensive and up to date legal information on Court refuses to imply term regarding timescale for service of break notice (Wigan BC v Scullindale Global Ltd)

Restructuring plan meetings convened on tight timetable in face of strong landlord opposition (Re Virgin Active Holdings Ltd)

The following Banking & Finance news provides comprehensive and up to date legal information on Restructuring plan meetings convened on tight timetable in face of strong landlord opposition (Re Virgin Active Holdings Ltd)

Featured Property content

What is a certificate of title?

A certificate of title (also known as a certificate on title) is a particular species of report on title.When solicitors are instructed to investigate...

The equity of redemption

Disposal and devolutionThe equity of redemption arises as soon as the mortgage is made. It is an interest in the land which the mortgagor...

Equitable mortgages and equitable charges—general principles and registered land

Nature of mortgages and chargesMortgages and charges are distinct forms of security. A mortgage can be legal or equitable and involves the transfer of...

Underletting at less than the passing or market rent

When property markets suffer a downturn, commercial tenants with properties that are surplus to requirements face significant difficulties in...

Practice notes

Remedies for breach of restrictive covenants

Damages or injunction — the testThe primary remedy for breach of a restrictive covenant is a permanent injunction to restrain the breach. However, the...

9th Nov

Practice notes

Rent deposit deeds—common structures

What is a rent deposit?A rent deposit is a sum of money that is deposited by a tenant when it takes a lease of premises as security against the...

9th Nov

Practice notes

Headline rents

What is a headline rent?In a falling market, landlords frequently offer tenants financial inducements to take a lease in order to maintain the level...

9th Nov

Practice notes

Derogation from grant and the covenant for quiet enjoyment

The rule against derogation from grant applies in addition to any obligation of quiet enjoyment. It is not excluded by an express covenant for quiet...

9th Nov

Practice notes

The ‘ad medium filum’ rule

The ‘ad medium filum’ rule is a rebuttable presumption that an owner of land which abuts either:•a public or private highway, or•a non-tidal river or...

9th Nov

Practice notes

Insurance—non-vitiation (non-invalidation) clauses

Vitiation of an insurance policyAn insurance policy may be vitiated (or invalidated) if the insured:•misrepresents or fails to disclose any material...

9th Nov

In-house

Practice notes

Easements—actionable interference

Wrongful interference with an easement is a private nuisance. The existence of the easement must be established for a claim to succeed.Not every...

9th Nov

Practice notes

Implied easements—common law

There are three different ways by which an easement can be implied at common law:•necessity•intended use•the rule in Wheeldon v BurrowsThe implied...

9th Nov

Precedents

Deed of grant of easements

This Deed is made on [insert date]PARTIES1[insert name of the owner of the Servient Land] [ of [insert address] OR incorporated in England and Wales...

9th Nov

Practice notes

Applying the proceeds of sale

Sale by a mortgagee destroys the equity of redemption in the mortgaged property. The sale defeats the rights of all subsequent incumbrancers, whose...

9th Nov

Practice notes

Guide to reviewing certificate of title

Coronavirus (COVID-19): The requirements to obtain an EPC before a property is sold or let can be difficult to satisfy when social distancing measures...

9th Nov

Q&As

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) automatically transfers any existing mortgages on a leasehold title when the lease is extended under LRHUDA 1993. Therefore it is not necessary to obtain the mortgage company's consent to the lease extension. However, if there is a mortgage on the landlord's title, does the landlord need to obtain consent or does LRHUDA 1993, s 58 also render obtaining consent unnecessary?

Section 58 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) governs the position in respect of mortgages both of the...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 12th Jan

Practice notes

Rent suspension or cesser

Generally, the tenant remains liable for the rent even though the premises have become unusable. Consequently, leases normally contain a provision...

9th Nov

Precedents

Deed of release of covenants

This Deed is made on [date]Parties1[name of person releasing the covenants] [of [insert address] OR incorporated in England and Wales with company...

9th Nov

Practice notes

Enquiries before contract

Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the COVID-19 outbreak....

9th Nov

Practice notes

Double funding

Brexit: The UK left the EU on 31 January 2020. This has implications for the schemes providing for agricultural subsidies in England and Wales, which...

9th Nov

Most recent Q&As content

Q&As

Where multiple dwellings relief and subsidiary dwellings relief have been applied, and because of the coronavirus (COVID-19) increase to the nil rate band, the amount of stamp duty land tax (SDLT) due is £0, will a buyer still be required to pay 1% of the consideration as SDLT?

Where multiple dwellings relief (MDR) applies to a transaction a buyer can choose whether to claim MDR or pay stamp duty land tax (SDLT) calculated on...

16th Apr

Q&As

Is there any saving provision under the current SDLT holiday rules for a transaction which has exchanged before 31 March 2021 but which completes after that date, due to unforeseen delays ie coronavirus (COVID-19) related?

The temporary increase in the nil rate band for SDLT applies to transactions with an effective date that falls within the period from 8 July 2020...

16th Apr

Q&As

If a section 21 notice is dated and posted on a bank holiday, is it validly served? If so, when will it be deemed served? Does a section 21 notice expire ten months (because of coronavirus (COVID-19)) from the date stated in the notice, ten months from the date it was served or ten months from the effective date of service?

Common law rules of service apply to notices served under section 21 of the Housing Act 1988 (HA 1988) (to seek possession of an assured shorthold...

16th Apr

Q&As

How is the ‘fair proportion’, which a tenant is obliged to pay in respect of service charges, to be calculated where the tenant occupies part of a property, the remainder of which is vacant? Would the landlord be obliged to contribute in relation to the vacant parts or would the tenant be obliged to pay the entire costs on the basis that it is the sole recipient of the services?

This Q&A raises the manner in which a service charge should be interpreted. Such clauses are terms of a contract and must be construed like any other....

15th Apr

Q&As

A commercial tenant is looking to exercise a break clause and terminate its lease. However, the landlord has made a large demand for service charge contributions towards the cost of a new lift at the premises. The tenants position is that it is unfair to meet the costs when it will get little, if any, benefit from the work. Although commercial tenants get no statutory protection on service charges is there any case law on this issue?

In the event of a service charge dispute, the starting point for resolving the dispute will be the lease terms. The following PSL content may be...

15th Apr

Q&As

In a mixed use development where a party is taking a 999-year lease of part for commercial use and a management company has been formed to service the common parts, etc would it be normal to restrict membership of the management company to the residential leaseholders?

The structure of the:•leasehold interests•service charge accounts•management obligations and composition of management companieswill largely depend...

15th Apr

Q&As

If a commercial lease contains a provision to pay service charge but service charge has never been demanded, is there a limit as to what period a landlord can request backdated service charge for?

In the case of commercial premises, the protection afforded to residential tenants by the Landlord and Tenant Act 1985 (LTA 1985) will not apply. As...

Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 15th Apr

Q&As

The landlord pays an estates rentcharge and has been recovering the sums paid via the service charge in a lease with one of its tenants. The scope of the service charge is not wide enough to cover such charges. Can the tenant bring a claim for restitution for unjust enrichment?

Subject to the terms of the lease and any other agreement reached by the parties in respect of the position where service charges paid by a tenant...

15th Apr

Q&As

Where a tenant pays service charge quarterly (and the service charge includes the tenant’s proportion of the insurance premium), but the landlord is required to pay the insurance premium in a single payment, can the landlord recover the whole of the tenant’s proportion of the premium in the first quarterly service charge instalment or must it be spread across the quarterly payment dates?

As a very general rule, the services provided by a landlord (or a management body) to leaseholders over the course of a service charge year are...

Produced in partnership with Desmond Kilcoyne 15th Apr

Q&As

There is registered land made up of three title numbers. Two of the titles are in the name of the individual seller, and the third is in the name of the seller's deceased partner. The seller has been appointed as sole executor of the deceased partner's estate. Can all three titles be transferred via a TR5, given that the seller is acting as executor of the third title?

See: HM Land Registry Practice Guide 21: using our forms for complex and more unusual transactions.Even though the seller has been appointed sole...

14th Apr

Q&As

Where a person owns two properties on one title, how can they split them into two separate Land Registry titles, but creating a right of way for one property across the other (access to the highway)? This is not a sale and the properties will still be owned by the same one person.

It may be possible to split the title into two titles, but this is very much dependent on the cooperation of HM Land Registry. See Q&A: Is it possible...

13th Apr

Q&As

Can a document executed and described as a deed be subsequently validly varied by solicitors’ exchange of emails?

The requirements for variation of a deedIt was formerly a rule of common law that contracts entered into by way of deed could only be varied by deed....

12th Apr

Q&As

I act for a buyer purchasing a commercial property subject to a commercial lease. The lease is dated 2016 and the term is continuing. The energy performance certificates (EPC) rating of the property is an 'F'. Is the continuing letting of this property unlawful because of the EPC rating?

It is assumed that the query relates to England and Wales.Minimum energy efficiency requirements for domestic and non-domestic properties enacted...

12th Apr

Q&As

Will using a landlord break clause in the last year of a commercial lease, have the same effect as contracting out of the Landlord and Tenant Act 1954?

Part II of the Landlord and Tenant Act 1954 (LTA 1954) applies to give security of tenure to tenants occupying premises for the purpose of a business,...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 9th Apr

Q&As

Will a section 177 of the Highways Act 1980 licence be valid where a building oversails land belonging to a third party and consent has not been obtained from the third party but the local authority has provided consent? Is there any restriction on how long a section 177 highways licence can be granted for?

Consent of adjoining ownerTrespass is the unlawful presence of a person on land in the possession of another. The ownership of land includes the...

9th Apr

Q&As

If a tenancy agreement does not exist how can the occupier be evicted from the property? The property belongs to an estate and the executor is refusing to move out and is breaching their duty as an executor as distributions have not been equalised in accordance with the deceased's Will.

How can an occupier be evicted from the property?A tenancy agreement is merely a written expression of a contractual relationship between the parties....

Produced in partnership with Dr David Smith of JMW Solicitors LLP 9th Apr

Q&As

If an agreed form of transfer is purportedly attached to an option agreement (‘the transfer to X will be in the agreed form annexed to this agreement’), but is not attached and in fact does not exist, does this affect the validity of the option agreement?

It is common for a contract that relates to land, such as an option agreement, to provide that the terms of the transfer in the event that a transfer...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 8th Apr

Q&As

Is a Landlord and Tenant Act 1954 simple declaration signed with an electronic signature valid?

We are not aware of any authority as to whether or not a Landlord and Tenant Act 1954 (LTA 1954) simple declaration can be returned with an electronic...

8th Apr

Q&As

Where a (security) trust is intended to benefit future beneficiaries but initially only benefits one party who is both trustee and sole beneficiary is it arguable that the legal and beneficial interests do not merge? If they do merge, can the interests be demerged if there are new beneficiaries in the future (ie when the sole lender sells down the loan) by a contemporaneous declaration by the trustee that it holds the property on the terms of the trust?

We refer you to the following Practice Note which you may find useful for your purposes: The security agent and security trust provisions.It is quite...

8th Apr

Q&As

If I can’t meet the people I am contracting with to sign a contract, how do I execute a contract by virtual means?

Many businesses are closing their offices or recommending their staff work from home in an attempt to slow the spread of coronavirus (COVID-19). This...

8th Apr

COVID-19