Landlord and Tenant Digest Volume 20 (5)

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This material was first published by Thomson Reuters Professional (UK) Limited in the Landlord and Tenant Review and is reproduced by agreement with the Publishers.

Commercial Update

Break notices

Riverside Park Ltd v NHS Property Services Ltd [2016] EWHC 1313 (Ch)

The issue was whether a tenant of commercial premises had given vacant possession prior to a break date following the service of a break notice. The tenant had left certain partitioning in place. On the facts of the case the partitioning was a chattel rather than a fixture consequently it amounted to an impediment which substantially prevented or interfered with the landlord’s right of possession and the tenant had not therefore given vacant possession.

Oral variations of written agreement

MWB BUSINESS EXCHANGE CENTRES LTD v ROCK ADVERTISING LTD [2016] EWCA Civ 553 

Parties to a written agreement who had set down that there could be no oral variation, were free to orally vary the terms of that agreement; in particular in relation to re-scheduling licence fees due for premises it occupied.

Residential Update

Landlord’s statutory repairing obligations

EDWARDS v KUMARASAMY [2016] UKSC 40

 An assured tenant of a flat claimed damages from his landlord for personal injury arising from tripping on a paving slab on his way to the bin store.  The landlord only owned the headlease of the tenant’s flat, not the common parts, where the offending slab was situated.   The claim under s.11(1A) of the Landlord and Tenant Act 1985 gave rise to three issues: a.) was the slab ‘the exterior of the front hall’ so as to fall within the definition of s.11; b.) and if so, did the landlord have an estate or interest in the common parts; and c.) was there a requirement of notice?

 The landlord escaped liability on the basis that it was not possible to treat a path leading from a car park and bin store to the front door of the block as part of the exterior.   That was enough for the landlord to defeat the claim.  However, the court went onto deal with the other two issues.  As the landlord had an easement to the bin store, that would have been a sufficient interest in the common parts.  On the final point, as the landlord did not have possession of the common parts and had disposed of their easement for the duration of the sub-tenancy, there was a requirement of notice. 

Right to Manage

FRANCIA PROPERTIES LTD v ARISTOS ARISTOU & 8 ORS (2016) unreported, County Court (Recorder Morgan) 4th August.

 The freeholder / landlord of residential property comprising flats, which was subject to a right to manage under the Commonhold and Leasehold Reform Act 2002, was entitled to develop the airspace. The landlord retained the roof space and the airspace above.  There was nothing in the occupational leases which prevented such a development (this was a matter of construction of the particular lease terms).  The proposed development would not amount to a derogation from grant as although there might be a loss of daylight and sunlight to the terrace of one of the flats, that was not substantial and would not render the flat unfit or substantially less fit for purpose.  Nor was there anything in the fact that the right to manage had been exercised which precluded the landlord from carrying out the development.  However, the landlord did have to carry out the development in a manner which minimised any disruption to the right to manage company exercising its management functions. 

Judicial Review

R (on the application of MacLeod) v Governors of the Peabody Trust [2016] EWHC 737 (Admin)

Mr Macleod was an assured tenant of a flat in Bethnal Green. The reversion of the flat was sold by the Crown Estate Commissioners (“CEC”) to Peabody Trust. Mr Macleod applied to exchange his tenancy with a local authority tenant in Edinburgh. Peabody refused the request. Mr Macleod challenged that refusal by way of judicial review. The claim was not amenable to review as Peabody was not exercising a public function in relation to the tenancy of Mr Macleod inter alia because Peabody purchased the properties from CEC using funds raised on the open market, not via any public subsidy or grant.

Council Tax Liability

Leeds City Council v. Broadley [2016] EWHC 1839 (Admin)

An assured shorthold tenancy which was granted at a monthly rent for 6 months and thereafter determinable by one months notice by either party was not void for uncertainty.  It created a fixed term followed by a periodic term.  As neither offended the principle against uncertainty, it did not follow that by combining the two, the tenancy was also void.   The result being that under s.6 of the Local Government Finance Act 1992, the tenant was liable to pay council tax.

Tribunal Rule 13 Costs

WILLOW COURT MANAGEMENT CO (1985) LTD v RATNA ALEXANDER [2016] UKUT 290 (LC)

The Upper Tribunal has set down guidance for the approach to be taken on costs under Rule 13 of the Tribunal Procedure Rules 2013.   Applications should be dealt with in three states: a.) has the party acted unreasonably; b.) if so, should an order for costs be made; c.) if so, what terms should be ordered.   The first stage involves as value judgment as to conduct, ‘is there a reasonable explanation for the conduct’, the second two involve the exercise of judicial discretion.  Most cases should be dealt with summarily and on the papers. 

 

S. 168 determination

Roundlistic Ltd v Jones [2016] UKUT 325

A covenant in the lease of a maisonette restricted its use to that of a single private dwelling occupied by the current lessee. The landlord sought a declaration under s. 168 Commonhold and Leasehold Reform Act 2002 that the tenant was in breach of that covenant. The lease had been extended under Chapter II of the Leasehold Reform Housing and Urban Development Act 1993. The original lease had contained a recital that any lease of the other maisonette in the building would be on the same terms. The Upper Tribunal rejected the tenant’s argument that there was a common assumption amounting to an estoppel that the use covenant would not be enforced based on the recital coupled with the lessor’s conduct in letting out the upper maisonette. The Upper Tribunal also held that Unfair Terms in Consumer Contracts Regulations 1999 were capable of applying to a lease R. (on the application of Khatun) v Newham LBC [2005] Q.B. 37 followed, but did not apply in this case because the terms of the lease reflected the mandatory statutory provisions of the 1993 Act.

Enfranchisement – terms of acquisition

Greenpine Investment Holding Ltd v (1) Howard de Walden Estates Ltd and (2) Charles Russell Speechlys LLP [2016] EWHC 1923 (Ch)

In the context of a lease extension under Chapter II of the Leasehold Reform Housing and Urban Development Act 1993 the judge had to determine whether an agreement to provide a foreign lawyer’s opinion on the status of the BVI registered tenant company was a “term of acquisition” as defined by s. 48 (7) of the Act and whether a statement made by the freeholder’s solicitor that "we will complete on receipt of funds" amounted to a solicitor’s undertaking. The judge held that the requirement to provide the opinion was capable of being a term of acquisition and that the statement made by the solicitor was not an undertaking. The judgment contains an interesting consideration of what amounts to a term of acquisition and expresses in obiter dicta the controversial view that the terms of acquisition to be agreed or determined by the Tribunal are the proposals contained in the respective notices that remain in dispute at the relevant time.

Suspended possession orders – cultivation of cannabis

City West Housing Trust v Massey [2016] EWCA Civ 704

In two conjoined second appeals from orders made by district judges the Court of Appeal gave guidance on the proper approach to be taken by district judges in deciding whether to make a suspended possession order where the premises had been used for the cultivation of cannabis. In order to justify a suspended possession order there ought to be “cogent evidence providing a real hope that the defendant had mended his ways” per Sandwell MBC v Hensley [2008] HLR 22 (also a cannabis cultivation case). To be “cogent”, the evidence must be more than simply credible: it must be persuasive. There has to be evidence which persuades the court that there is a sound basis for the hope that the previous conduct will cease or not recur.

Energy Efficiency Regulations

The Energy Efficiency (Private Rented Property) (England and Wales) (Amendment) Regulations 2016

The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (“the 2015 Regulations”) introduce measures to improve the energy efficiency of certain private rented property in England and Wales. Part 3 of the 2015 Regulations prescribes a minimum level of energy efficiency for private rented properties, and introduces a prohibition on letting private rented properties which fall below that standard (“sub-standard property”). Part 3 was to come into force on 1st October 2016, to enable landlords seeking to rely on a prescribed exemption when letting a sub-standard property, to register that exemption prior to the prohibition on letting sub-standard private rented properties coming into effect. These Regulations amend the coming into force date of Part 3, so that it comes into force on 1st April 2017 in relation to non-domestic private rented properties, and on 1st October 2017 in relation to domestic private rented properties.