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Where an application is made under Part IV of the Family Law Act 1996 and the respondent’s whereabouts are unknown, can an application be made to the court for disclosure of the respondent’s address by a government department under Family Procedure Rules 2010, PD 6C ? If not, what is the appropriate procedure when the respondent’s address is unknown?
Q&As
Part IV of the Family Law Act 1996 (FLA 1996) contains important provisions for the safeguarding of a person from an associated person, by way of a non-molestation order, and for regulating the occupation of a property, by way of an occupation order. Such orders are frequently required upon the breakdown of a relationship or where there has been ongoing domestic violence. It will sometimes be the case that the whereabouts of the intended respondent are unknown and this will cause difficulties with the service of the application and any orders. Applications under FLA 1996, Pt IV are governed procedurally by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 10 and FPR 2010, SI 2010/2955,
Where an application is made under the Trusts of Land and Appointment of Trustees Act 1996 in relation to more than one property, is it necessary to file a separate claim form for each property or can several properties be included in one claim form?
Q&As
The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) contains wide-ranging powers relating to the legal and beneficial ownership of property. TOLATA 1996, s 14 allows the court, inter alia, to make orders declaring the beneficial ownership of a property. This means that the court has the power, having regard to the circumstances set out in TOLATA 1996, s 15 and relevant case law, to determine the true beneficial ownership of a property. This is usually done by virtue of the finding (whether on express evidence, implication or, in some circumstances, imputation) of a common intention constructive trust, though in the decade following Stack v Dowden, the prospect of a resulting trust arising in certain circumstances including in the domestic
Where an application to set aside a statutory demand is emailed to the court (one day late and without a fee having been paid) and no court file was opened or hearing listed such that the only evidence is an automated response email from the court, could this be an ‘outstanding application’ under section 267(2)(d) of the Insolvency Act 1986?
Q&As
Section 267(2)(d) Section 267(2)(d) of the Insolvency Act 1986 (IA 1986) provides that ‘…a creditor's petition may be presented to the court in respect of a debt or debts only if, at the time the petition is presented…there is no outstanding application to set aside a statutory demand served (under section 268 below) in respect of the debt or any of the debts.’ See also Commentary: Conditions for creditor’s petition: Atkins Court Forms [101]. Furthermore, the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 10.9(2)(b)(ii) provides that the bankruptcy petition must state that, to the best of the creditor’s knowledge and belief, no application to set aside the statutory demand is outstanding. Setting aside
Where an application to set aside judgment in default has been dismissed, can a second application be brought (a) if there are new facts that were not previously stated before the court and (b) if there are no new facts?
Q&As
In circumstances when an application to set aside judgment in default has been dismissed, it is unlikely that the court will allow a second application to set aside default judgment except in wholly exceptional circumstances, such as where the defendant is able to show evidence that default judgment was obtained by fraud. This was confirmed by two judgments in 2016. In Samara v MBI & Partners UK Ltd, the first defendant made a second application to set aside a default application by making a fresh application under CPR 13.3 by reference to CPR 3.1(7), and the cases of Thevarajah v Riordan and Tibbles v SIG PLC (trading as Asphalt Roofing Supplies).
Where an application was made within 14 days of being refused permission to appeal to the Upper Tribunal, can the applicant rely on the period in which the application was pending (subsequently granted) as ‘continuous and lawful residence’ for the ten-year route to settlement?
Q&As
Section 3C of the Immigration Act 1971 (IA 1971) temporarily extends an applicant’s leave for the period that their application is under consideration, including when pursuing an appeal or administrative review following a negative decision. See Practice Note: When does leave continue—making and withdrawing applications, challenging decisions and travel. The long residence rule permits an applicant to apply for indefinite leave to remain (ILR) if they can demonstrate that they have been present in the UK for a continuous and lawful period of ten years. The definition of ‘continuous’ is found in Immigration Rules, Part 7, para 276A(a). The three main conditions for ‘continuous residence’ are that the applicant: • has not been absent from the UK for a period of over six months at any one time, and for 18 months in total during
Where an arbitrator, acting under the Arbitration Act 1966, has determined an open market rental value of a property following a disputed rent review, does the landlord require the permission of the court to ‘enforce an arbitration award’. The parties engaged in formal arbitration and a market value has been determined. The award was never challenged or appealed and is therefore binding. The landlord has therefore continued to demand rent at the new rental value. The tenant has fallen into arrears. Can the landlord simply issue a claim in the county court for those arrears, or does the landlord require permission to enforce the award of the arbitrator? The award was simply a declaration of the open market rental value—there was no award for payment of arrears, all of which accrued post-arbitration.
Q&As
The Q&A assumes that the landlord is seeking to recover the difference between the rent reserved under the lease and the new rent demanded after the rent review. However, what is not clear (as the question contains conflicting information) is whether the arrears only accrued prior
Where an assignment of a registered lease is made by one registered charity to another, will the trustees of the assignor trust hold the registered legal title on behalf of the assignee trust in circumstances where an application has been made to dissolve the assignor trust?
Q&As
Case study: The registered charity assigning the lease (the first trust) did not give notice of the assignment to the landlord under the provisions of the lease, nor was the assignment registered at HM Land Registry. Previously, the first trust was granted a licence to sublet part of the property by the landlord, and a sublease was executed by two trustees of the first trust. Subsequently, notices excluding the sublease under Part II of the Landlord and Tenant Act 1954 (LTA 1954) were served. Previously, the assignor was granted a licence to sublet part of the property by the landlord, and a sublease was executed by two trustees of the first trust; are the trustees entitled to do so and will this sublease survive the assignment of the headlease?
Where an assured shorthold tenancy is executed with a date for the beginning of occupation of the property, if a tenant fails to take occupation is the tenancy agreement enforceable as a contract?
Q&As
As soon as the tenancy is executed by the parties it gives the tenant a right to possession on the commencement date and all the obligations between landlord and tenant are enforceable. It does not matter that the
Where an assured shorthold tenancy is in the name of two tenants, but one tenant passes away, does the landlord still have to serve a section 21 notice on both tenants, or is it sufficient to serve on the living tenant only?
Q&As
An assured tenancy is one where the tenant or, as the case may be, at least one of the joint tenants, occupies the dwelling house as their only or principal home. It is assumed, therefore, that while both people who were tenants were alive, at least one of them occupied the dwelling house as an only or principal home and that the surviving tenant continues to do so after the other has died. If this is not the case, then the tenancy will not have assured status under the Housing Act 1988 (HA 1988). HA 1988 makes provision for the usual situation where more than one person is a tenant under an assured
Where an assured shorthold tenancy provides that a tenant pay the landlord’s costs incurred in connection with the recovery of rent arrears, what methods can a landlord use to recover costs incurred in serving a section 8 notice following arrears of rent (which were subsequently settled prior to proceedings being issued)?
Q&As
It must first be ascertained that the costs recovery clause is sufficiently wide to encompass costs incurred in preparing and serving a section 8 notice for possession (section 8 of the Housing Act 1988 (HA 1988)), ie the notice was seeking possession rather than recovery of rent, albeit that the ground for possession was rent arrears and the service of the notice resulted in those arrears being settled. For more information in respect of construction of cost recovery clauses in the context of leases, see Practice Note: Recovering the landlord's legal costs. For guidance in respect of recovery of costs under contractual clauses more generally, see Practice Note: Costs—recovery of costs under contractual clauses and in respect of pre-action costs recovery more generally, see Practice Note: Pre-action—costs
Where an assured shorthold tenancy requires the tenant to pay rent annually in advance, can the landlord exercise a break option to take effect before the end of the period for which rent has already been paid? If so, can the landlord make a possession claim based only on the break taking effect, or must they also serve a section 21 or section 8 notice?
Q&As
This Q&A assumes that the rental payments represent true payments for occupation and are not disguised payments for fees, or a deposit. The exercise of a landlord's break option under an assured shorthold tenancy does not bring the tenancy to an end. It merely accelerates the end of the contractual term, allowing the landlord to rely on the methods
Where an assured shorthold tenant paid a deposit to landlord A, landlord A failed to protect the deposit, then sold the property to landlord B—is landlord B barred from serving a valid section 21 notice (until the deposit is returned) because of landlord A's failure to protect the deposit?
Q&As
A section 21 notice cannot be served where the tenancy deposit scheme(TDS) has not been complied with. Under section 215 of the Housing Act 2004 (HA 2004) a landlord cannot recover possession of its property by serving notice under section 21 of the Housing Act 1988 (HA 1988) (section 21 notice): • if the deposit is not held in an authorised