The tort of private nuisance allows recovery of damages and/or injunctive relief where there has been the unreasonable use of land to the detriment of neighbouring land (see, generally, Miller v Jackson). It is necessary for the claimant to have some interest in the land affected, whether as freeholder, leaseholder, tenant or some other proprietary interest (see Hunter v Canary Wharf). The use of the land constituting the nuisance must be unreasonable, which will mean that claims are fact-sensitive. The court will consider the character of the neighbourhood, the duration of the nuisance and other factors to determine whether the nuisance is actionable. Smells can be an actionable

The starting point for any contractual dispute is always the wording of the contract. In this Q&A, the first question is: does the contract permit the landlord to terminate the contract with the letting agent? And, if so, on what terms? Where the landlord is an institutional landlord and, in effect, has as much bargaining power (or more) than the letting agent, the issue is purely one of contract. Accordingly, if there is no clear termination provision, or the termination provision is fettered (eg it cannot be exercised while the property is occupied by a tenant introduced by the letting agent), or there is a fee payable by the landlord whether or not the contract is terminated, it is purely a matter of contract whether the landlord can terminate the agreement. Accordingly, the true construction of the contract will determine the outcome—and, in this connection,

Enforcement of possession orders As set out in Practice Note: Protection from eviction and protection from harassment, if a residential tenant remains in occupation of the premises after the end of the tenancy, then the landlord can only recover possession by way of court proceedings, on the basis that they will benefit from protection under section 3 of the Protection from Eviction Act 1977 (PEA 1977). This is because PEA 1977 makes it an offence for a landlord to take back possession of a private residential property (subject to certain exclusions—see below) without a court order. In addition, the landlord must use a bailiff to execute the court order if the tenant does not vacate the property by the date stated in the order. Commentary at Appeals from an order in a possession claim: Claims to the Possession of Land [G1.48] states that: 'Even if an absolute possession order has been

The following assumptions have been made for the purposes of this Q&A, that the: • tenancy has terminated pursuant to a court possession order and the purported subletting took place after the possession order became effective but before the bailiff’s appointment was made pursuant to the warrant for possession • property is commercial and not residential. If the property is residential, a property owner must be particularly careful in taking back possession by changing

Under the right to manage (RTM) scheme set out in the Commonhold and Leasehold Reform Act 2002 (CLRA 2002), the landlord’s management functions are transferred to the RTM company and the tenant is liable to it, rather than the landlord, in respect of the tenant’s obligations under the lease (CLRA 2002, ss 96(2), 97(4)). See generally Practice Note: The right to manage as to the entitlement to exercise, and limits of, the RTM. ‘Management functions’ are functions with respect to services, repairs, maintenance, improvements, insurance and management (CLRA 2002, s 96(5)). Accordingly, the RTM company takes over from the landlord all arrangements for management (as defined), as they are formulated in any lease in the covenants and other terms. This includes the capacity to enforce the covenants etc (such as by taking action for any debt, damages or injunctive relief), but not the right to forfeit the lease (CLRA

Section 21 of the Landlord and Tenant Act 1985 (LTA 1985), allows a residential tenant to require its landlord to supply them with a summary of costs incurred relating to the service charges for the last accounting year or, if accounts are not kept by accounting years, the past 12 months. The landlord must comply with such a request within one month (or within six months of the end of the 12-month accounting period, whichever is later). If the service charge must be paid by the leaseholders of more than four

A supply of insurance is generally exempt. In most cases where a landlord passes on insurance costs to a tenant, however, there is no separate supply of insurance and the recharge

Section 15 of the Limitation Act 1980 (LA 1980) imposes a limitation period of 12 years on the legal owner of land from seeking to recover it from a person who is in adverse possession of it. If that period passes without the land owner seeking to recover the land by action, the legal owner’s title will be extinguished. LA 1980, s 15 still applies in relation to unregistered land but not in relation to registered land. The register is the basis of title to registered land and so there is far less justification for the limitation period set out. The Land Registration Act 2002 (LRA 2002) changed the law in respect of adverse possession of registered land. Ignoring for the current purposes the transitional provisions, an adverse possessor of registered land can, after ten years adverse possession, apply to be registered as proprietor, and if they succeed they

The usual professional to assist the parties through the process is a chartered surveyor. Case study A client owns the freehold to residential premises, part of which is subject to a long residential lease. The lease prevents structural alterations without landlord’s written consent, not to be unreasonably withheld. The tenant is selling its interest and it transpires that he has erected a stud wall within the premises. He has applied for a retrospective licence to alter. Can the landlord seek compensation from the tenant for carrying out works without

This will depend on whether there is an exception for fair wear and tear in the lease, and if so, how it is construed. In theory, an exception for damage caused by fair wear and tear means that the tenant is not liable for damage caused by the reasonable use of the premises and the ordinary operation of natural forces. However, exactly how the exception is construed will depend on the wording in the

A landlord waives his right to forfeit where he: 'unequivocally recognises the continued existence of the tenancy, either expressly or by some act which is only consistent with the continued existence of the tenancy' See: Hill and Redman's Law of Landlord and Tenant > Division A General Law > Chapter 14 Determination of the tenancy > J Forfeiture > 11 Waiver Landlords usually encounter problems in relation to waivers in connection with their demand for, or acceptance of, rent following a breach of condition or covenant. It is now settled law that those acts amount to waiver.

The right to manage (RTM) was established under the Commonhold and Leasehold Reform Act 2002 (CLRA 2002) to allow qualifying long leaseholders to take control of the management of blocks of flats. The aim of these reforms was two-fold; to provide protection to leaseholders against unscrupulous landlords or managing agents, and to empower leaseholders to take responsibility for property in which they commonly had the greater financial interest. CLRA 2002 sets up a process by which the right to manage can be established. Provided that the necessary formalities are complied with, there is no