Landlord and Tenant Digest Volume 21 (2)

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Commercial Update

Tenancy or Licence

Holland v Oxford City Council [2016] EWHC 2545 (Ch)

The Claimant operated sites at a fair for a number of years for a few days each year. Whilst it was possible that this could have been a tenancy, the actual terms of the occupation did not confer exclusive possession and therefore only amounted to a licence. 

Admissibility of non CPR r. 35 expert evidence

Mondial Assistance (UK) Ltd v Bridgewater Properties Ltd [2016] EWHC 3494 (Ch)

In a claim for a new business lease the tenant’s expert valuer appended reports from other experts as to the condition of various parts of the demised premises such as the lifts, the lighting and curtain walling. The landlord objected that the tenant was trying to get the evidence in the appendices in by the back door at it did not have permission to adduce evidence from such other experts. Nugee J disagreed. The combined effect of the Civil Evidence Act 1972 s.3 and s.1(1) of the Civil Evidence Act 1995 was that the opinion of a properly qualified expert was prima facie admissible, Rogers v Hoyle[2014] EWCA Civ 257 followed. That was not affected by the provisions of CPR Pt 35 unless the evidence was that of "a person who had been instructed to give or prepare expert evidence for the purpose of proceedings" under r.35.2(1).

Business lease

Clear Call Ltd v Central London Investments Ltd [2016] EWCA Civ 1231

In an appeal to the High Court concerning a claim for a new business lease the tenant had been refused permission to adduce fresh evidence seeking to establish that one of the comparable transactions relied on by the landlord and accepted by the judge at first instance was a sham. The Court of Appeal upheld the decision of the High Court. The fresh evidence could, in substance, have been deployed at the trial. It therefore failed the Ladd v Marshall test. Reliance by the Appellant on dicta in Davy's of London (Wine Merchants) Ltd v City of London Corp [2004] EWHC 2224 (Ch) was misplaced.

Residential Update

Lease Extension

Kateb v Howard de Walden Estates Ltd [2016] EWCA Civ 1176

An agreement as to the price payable for a lease extension under the Leasehold Reform Housing and Urban Development Act 1993 between the competent landlord and the leaseholder is binding on an intermediate landlord. Notwithstanding their right to separate representation in proceedings, they were not entitled to challenge a sum agreed. If they had suffered a loss due to negligence or bad faith, then they could be entitled to compensation.

Service Charges

Waaler v Hounslow LBC [2017] EWCA Civ 45

When considering the issue of whether service charge recovery was limited by s.19 of the Landlord and Tenant Act 1985, if the landlord intended to carry out discretionary works, then the weight given to the tenants’ views, including their ability to pay for the works, was greater than when the landlord was carrying out works pursuant to an obligation. In assessing the tenants’ ability to pay, it was not necessary (or desirable) to conduct any form of survey of individual ability, a broader approach was appropriate based upon the type of property.

Knapper v Francis [2017] UKUT 3 (LC)

When assessing whether service charges paid on account were reasonable for the purposes of s.19(2) of the Landlord and Tenant Act 1985, events not known at the time of the demand were not relevant. However, where a budget had been set and demands were made periodically over the year, events known after the budget had been set, but before a particular demand fell due could mean that an adjustment needed to be made. Where an adjustment was necessitated under s.19(2) because of events that occurred after the demand had fallen due, the adjustment required by the section should be applied in accordance with the lease terms. However, this subsequent adjustment was not something that the First-tier Tribunal had jurisdiction over. 

Thomas Homes Ltd v MacGregor [2016] UKUT 495 (LC)

The tenant made an application under s. 27A of the Landlord and Tenant Act 1985 in respect of several on account service charge demands. The Upper Tribunal held that the FTT had misconstrued the lease and had failed to determine the amount due. HHJ Huskinson held that section 19(2) of the 1985 Act applied to each of the on account demands, and therefore no greater amount than was reasonable was payable. On the facts the amounts demanded were reasonable.

Judicial Review

R. (on the application of Plant) v Lambeth LBC [2016] EWHC 3324 (Admin)

The Applicant was a secure tenant on a housing estate owned by Lambeth London Borough Council (“LLBC”). He challenged by judicial review the resolution of LLBC's Cabinet on 21 March 2016 to authorise the redevelopment of the entire estate. The application was rejected. Holgate J concluded inter alia:

  1. There was no legal requirement for the Cabinet to consider requiring a contractual right to buy to be inserted in assured tenancies which were to be granted after development when reaching its decision on 21 March 2016.
  2. LLBC’s officers' report to the meeting on 21 March 2016 was not to be treated as “significantly misleading” in relation to the right to buy issue.
  3. The consultation process carried out prior to the decision on 21 March 2016 did not cause any substantial prejudice to residents of the estate nor was unfair or unlawful.
  4. Alternatively if there were any such legal error the decision was not vitiated since it was inevitable that the same decision would have been reached absent that failure.

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.