Licence or a lease? Firstly, it should be determined whether or not there is a true licence in place, or whether it is in fact a lease. In summary, the court will determine whether an agreement is a lease or a licence by looking at its substance, not the label attached to it by the parties. In Street v Mountford the House of Lords identified the hallmarks of a tenancy. These hallmarks are: • exclusive possession • of defined premises Payment of rent might also be an indication of a tenancy, but in fact rent is not required

The new Electronic Communications Code (the ‘new Code’) (under Schedule 3A Part 1 to the Communications Act 2003) came into force on 28 December 2017. The previous Code (under Schedule 2 to the Telecommunications Act 1984) was repealed as of this date, but will remain relevant to existing agreements pursuant to transitional provisions in Schedule 2 to the Digital Economy Act 2017 (DEA 2017). DEA 2017, Sch 2 makes provision for subsisting agreements, ie: • an agreement under DEA 2017, Sch 2, para 2 (agreement for right to execute works) • an agreement under DEA 2017, Sch 2, para 3 (agreement for

A call option is (generally) an equitable interest in land and must be protected by registration in order to bind the grantor’s successors in title. Where the option land is registered, the call option must be protected by entry of a notice at HM Land Registry (HMLR). Agreed Notice: • advantage—it will not be removed from the register until the registrar is satisfied that the protected rights are no longer applicable • disadvantage—the option agreement must be sent to HMLR and will therefore be open to public inspection unless the agreement is

Exercising an option over freehold land subject to a legal charge. From a practical perspective, it is less a case of the buyer/tenant being ‘subject to’ the charge but more a case of it being potentially impacted by it. The buyer/tenant will need to make sure that the mortgagee consents to the lease/option since; otherwise, the mortgagee may be able to invalidate the lease and treat the tenant as trespasser. For further information we refer to our Lexis+® UK Property Practice Note: Mortgages and land—dealings with land subject to a mortgage or legal charge which covers responsibility for proving consent, the position under an unauthorised lease, appointment of a receiver, surrender and the protection of a tenant. It explains that if a property is subject to a mortgage that

In financial remedies proceedings, it is usually the case that a court will order that the parties bear their own costs of the proceedings. This is highlighted in Family Procedure Rules (FPR 2010), SI 2010/2955, Pt 28. Under FPR 2010, 2010/2955, 28.3 it states that: ‘…(5) Subject to paragraph (6), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party. (6) The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings

The question raises two subsidiary questions. So far as the first question relating to enforcement is concerned, the decision about the most appropriate form of enforcement proceedings to bring will be dependent on the facts of the case. A general enforcement application under Family Procedure Rules 2010, SI 2010/2955, 33.3(2)(b) may be an effective means of enforcement depending on exactly what is known currently about the means of the payer. It will result in an order for the payer to attend court for questioning, which of itself may result in the arrears being paid. The practical drawback to this route is that it prolongs the enforcement

An order for the sale of property under section 24A of the Matrimonial Causes Act 1973 (MCA 1973) is not a free-standing order. It can only be made as an adjunct to a legal services payment order, a secured periodical payments order, a lump sum order or a property adjustment order (MCA 1973, s 24A(1)). The order may be made at the same time as the order to which it is an adjunct or at any time thereafter. An order for sale does not therefore effect a transfer of a beneficial interest. Such a transfer would be effected by a property adjustment order under MCA 1973, s 24, such as a transfer of property order

CPR 73.10C provides that the court may, upon a claim by a person who has obtained a charging order over an interest in property, order the sale of the property to enforce the charging order. Such claim must be brought using the CPR 8 procedure and as such is a separate claim rather than an application within the charging order proceedings. CPR PD 73 sets out, in Appendix A, two sample orders for sale following a charging order, one where the property is solely owned by the judgment debtor and one where the property is owned by the judgment debtor and another person. Both templates provide that the claimant or their solicitor

Enforcing orders for sale By virtue of section 42 of the County Courts Act 1984 a judgment of the County Court may be transferred to the High Court for enforcement. The effect of such a transfer is that the judgment or order may be enforced in the High Court as if it were a judgment of the High Court. Under CPR 83.13(1)(a) an order for sale may be enforced in the High Court by a writ of possession. This assumes that the order for sale itself provided for the delivery up of possession. If it did not then an application would be needed for an order for possession under CPR 40.17. Permission to issue a writ of possession In most cases the court’s permission will be required to issue a writ of possession. There are exceptions, namely if it is a possession claim against trespassers under CPR

It is obvious that the term of the order dealing with access by an estate agent should be disclosed to the estate agent so that the estate agent has an answer to any objection by an occupier to them gaining access. The other terms may not be relevant to the estate agent, but some may be such as which party is to have conducting of the sale and whether that party is the person who is to instruct the agent. There may also be restrictions on a sale otherwise than at a minimum price and the order may also provide for the means of marketing and how it is to be paid for. It may be that the terms on which the claim has been resolved will be set out in the body of the order, but

The court has the power within financial remedy proceedings to make an order for sale. Section 24A of the Matrimonial Causes Act 1973 (MCA 1973) provides that where a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order has been made, the court can, on the making of that order or at any time thereafter, make a further order for the sale of specified property in which either party has a beneficial interest. MCA 1973, s 24A(2) provides that the court may make such consequential or supplementary provisions to that order as the court considers fit. Such orders take effect upon the making of the decree of divorce or

If the original order made within the financial remedy proceedings set a specific date for payment of spousal maintenance each month, or provided simply for payment monthly and yet in practice, the payments are delayed by longer than a month each time, then the party due to pay the maintenance is in default and an application for enforcement may be made. Enforcement of a financial order is governed by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 33. An application may be made in a notice of application accompanied by a statement that sets out the amount due, how that amount was arrived at, and with a statement of truth attached. The notice of application may either specify the method of enforcement