CPR PD55A, para 2.4 provides that if the claimant knows of any person (including a mortgagee) entitled to claim relief against forfeiture as underlessee under section 146(4) of the Law of Property Act 1925 (or in accordance with section 38 of the Senior Courts Act 1981, or section 138(9C) of the County Courts Act 1984), the particulars of claim in a possession claim must state the name and address of that person; and the claimant must file a copy of the particulars of claim for service on them. A mortgagee protection clause is a

This Q&A outlines the considerations when determining whether a need and provision is educational or health related. This Q&A deals with the difference in the relevant law between England and Wales. To understand how this distinction operates in practice it is first important to understand its significance. Why does this dispute arise? Since the advent of statements of Special Educational Needs (SEN) (Statements), there has been extensive disagreement about how certain types of provision should be defined. In particular, whether a need/provision is an ‘educational’ or ‘non-educational’ need. Under the Education Act 1996 (EA 1996), which still applies in Wales and to the remaining statements in England, this definition was used to decide whether the provision should be recorded in the (enforceable) Part 3 or the (non-enforceable) Part 6 of the statement. Accordingly, from a local authority perspective, classifying a need and provision as ‘non-educational’ can be beneficial as it will not be a breach of duty if, for whatever

This question raises the procedural steps which need to be followed when a claim is before the court for the grant of a new lease under Part II of the Landlord and Tenant Act 1954 (LTA 1954). It specifically raises the issue as to what needs to be done when the claim is unopposed. The procedure is contained within Practice Direction 56 of the Civil Procedure Rules (CPR PD 56). It provides for two types of claim: opposed and unopposed (see CPR 56.3 and CPR PD 56, para 8.3). For the claim to be opposed either the landlord will have served a section 25 notice setting out the grounds upon which the grant of a new tenancy is opposed or the tenant will have served a section 26 notice and the landlord will, within two months have served a counter notice stating

The potential infringer of a patent may apply for a declaration of non-infringement in order to obtain legal certainty as to whether an act it is already doing or an act it is proposing to do (eg making, using or selling a product or using a process) will infringe the patent concerned. See Practice Notes: Remedies in patent proceedings in particular at section ‘Declaration of non-infringement’ and Negative Declarations. For further background information, see: Declarations of non-infringement—Introduction: Roughton, Johnson and Cook on Patents [8.164]. In relation to the procedure for applying for a declaration of non-infringement of a patent, see: Procedure

This Q&A considers the procedure to be followed by a lender wishing to obtain possession of a property where the borrower is in arrears. In particular, it considers any differences in the procedure to be followed in respect of residential and commercial properties. A mortgagee holding a legal mortgage has a right to possession of the property, although this right can be limited by contract or statute. Unless the mortgage excludes the right to possession, the right arises as soon as the mortgage is entered into. Residential property In terms of the practical differences between obtaining possession, the key difference is the requirement in a residential context to follow the Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property (the Protocol). See Practice Note: Mortgage possession claims. The Protocol applies to: • first charge residential mortgages and home purchase plans regulated by

The Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) provided for the creation of a new system of tribunals. The former Lands Tribunal was abolished and replaced by the Upper Tribunal (Lands Chamber) (UTLC). It hears appeals on points of law from the First-Tier (Property Chamber) Tribunal (FTPC) and in certain circumstances, acts as a first-instance tribunal. Under the First-Tier Tribunal and Upper Tribunal (Chambers) Order, SI 2010/2655, art 12, the UTLC’s functions include: • compensation and other remedies for measures taken which affect the ownership, value, enjoyment or use of land or water, or of rights over or property in land or water • appeals from decisions of leasehold valuation tribunals, residential property tribunals, the valuation tribunal for England,

The basic rule under section 28 of the Land Registration Act 2002 (LRA 2002) is that the priority of an earlier interest is not affected by a later disposition. Where one or more interests affect a registered estate, the priority of the interests is determined by the date of their creation. However, LRA 2002, s 29(1) provides that a registrable disposition for valuable consideration

A legal charge over registered land is a disposition which must be completed by registration in order to take effect in law (section 27(2)(f) of the Land Registration Act 2002 (LRA 2002)). LRA 2002, Sch 2, Pt 1, para 8 sets out the registration requirements for the creation of a legal charge: the chargee, or their successor in title, must be entered in the register as the proprietor of the charge. While lenders also tend to require a restriction to be registered against the borrower’s title, this is not a requirement

The general position on judgments Subject to appeal and to being amended or set aside, a judgment is conclusive as between the parties. It is a fundamental doctrine of all courts that there must be an end of litigation, and a party may plead the doctrine of res judicata by way of estoppel. Where a judgment has been given which is a matter of record, an 'estoppel by record' arises and may take the form of cause of action estoppel or of issue estoppel. It may also be said that the cause of action has merged in the judgment Halsbury's Laws of England Volume 11 (2009) 5th Edition, paragraph 1154—Conclusiveness of judgments in general Setting aside a default judgment Default judgment application—not yet heard If the claimant has simply made the application for a default judgment but it has not yet been heard by the court, the most appropriate way forward for the defendant would be to make

Section 1 of the Housing Act 1988 (HA 1988) contains three prerequisites for a tenancy to be an assured tenancy: • the dwelling-house must be let as a separate dwelling • the tenant or, if there are joint tenants, each of the joint tenants, must be an individual • the tenant, or if there are joint tenants, at least one of them, must occupy the premises as his or her only or principal home A tenancy cannot be an assured tenancy if any of the exceptions listed in HA 1988, Sch 1 applies. In this regard see Practice Note: A summary of types of private residential tenancies which explains that under HA 1988, s 21(1), since 28 February 1997, the majority of assured tenancies are assured shorthold tenancies (ASTs). Any tenancy granted after 28 February 1997 is automatically an AST unless: • a

The powers of the court to divide the assets belonging to parties to a marriage following the initiation of an application for divorce, judicial separation or nullity are wide. The court has the power to direct that one party pay to another periodical payments for a specified term (which can include joint lives) section 23(1)(a) of the Matrimonial Causes Act 1973 (MCA 1973); require such periodical payments to be secured MCA 1973, s 23(1)(b); make an order for a payment of a lump sum or lump sums to the other MCA 1973, s 23(1)(c); make a property adjustment order MCA 1973, s 24(1) and an order

Procedure Accelerated possession proceedings may be used in respect of properties let on an assured shorthhold tenancies (AST) pursuant to section 21 of the Housing Act 1988 (HA 1988), where a landlord is claiming possession on the grounds that the tenancy has expired only. For guidance on the enforcement of a possession order, see Practice Note: Writs and warrants to enforce judgment—general provisions. CPR 83.26 will apply where you have obtained a judgment or order for the recovery of land, which is enforceable