Potential issues remain with introduction of Infrastructure levy
Fraser Mitchell, planning partner in the real estate team at Shoosmiths in Edinburgh considers the potential issues with plans to introduce Scotland’s first Infrastructure Levy Regulations.
Major change: the VAT reverse charge for building and construction services
The domestic reverse charge - referred to as the reverse charge - is a major change to the way VAT will be collected in the building and construction industry.
Which breaches of contract result in a right to terminate?
Most commercial contracts, including property contracts, include a right to terminate for one or both parties in the event of breach. As the ultimate recourse for an aggrieved party, courts are often asked to interpret termination rights.
Landowner fails to make out intention to redevelop under the Telecoms Code
The Upper Tribunal has given its first decision concerning intention to redevelop under the Electronic Communications Code 2017, holding that a landowner had not demonstrated the requisite intention.
Consultation issued on abolition of assured shorthold tenancies
The government has published a consultation seeking views on implementing its proposal to end no-fault evictions of residential tenants, which will have the effect of abolishing assured shorthold tenancies entirely.
Turning housing on to support electric vehicles
This week the government has published two consultations in relation to electric vehicle charging infrastructure, following the road to zero strategy published in July 2018.
The tenant that never was
The grant of a lease to a non-existent tenant highlights the importance of checking that companies in a transaction are registered at Companies House.
Ground rents to be outlawed for new residential lettings
The government has issued its response to last autumn’s consultation on its proposed ban on the sale of leasehold houses and on outlawing ground rents in new residential lettings.
Will consultation on short-term lets lock some doors?
In a recent round-table discussion of hot topics in Scottish property law, keen interest was sparked by the Scottish Government’s consultation on a regulatory framework for short-term lets.
Court guidance on contracting out commercial leases
The High Court has adopted a robust approach in a rare case involving the contracting-out procedure under the Landlord and Tenant Act 1954 that was introduced 15 years ago.
Updating the Code for Leasing Business Premises
The Royal Institution of Chartered Surveyors (RICS) is consulting on a new edition of the Code for Leasing Business Premises (the Code).
An end to ‘no-fault’ evictions of residential tenants
The government has announced proposals to stop landlords ending residential tenancies on a no-fault basis.
Yet further complexity to be added to stamp duty rules for residential property?
HM Treasury has recently published a consultation document in relation to a proposed 1% Stamp Duty Land Tax (SDLT) surcharge for non-UK residents purchasing residential property in England & Northern Ireland.
Telecoms Code: Tribunal clarifies who is entitled to grant a Code Agreement
The Upper Tribunal has, for the first time, dismissed a reference to it under paragraph 20 of the Code and ruled that a Code Agreement can only be sought from a person who is the ‘occupier’ of land.
Amended MEES rules for residential landlords now in force
Recent changes made to the MEES regulations may require residential landlords to spend up to £3,500 of their own money per property in order to improve the energy efficiency of their portfolios.
Residential lease reform gathers pace
A new Select Committee report recommends more widespread reforms of residential leases.
Proceeds of sale of school site lost due to operation of reverter
The closure of a school prior to its sale meant the use for which the land had originally been given had ceased and so the proceeds of sale did not belong to the local authority.
Conservation covenants – the government consultation
The government is consulting on Law Commission proposals to introduce a new form of “conservation covenant” to enable long term conservation schemes to be implemented.
Paving the way for adverse possession
A claim for adverse possession of a paved forecourt was successful even though the area was not fenced or enclosed.
Telecoms Code: Consideration and compensation finally under the judicial spotlight
We have the Tribunal’s first view on how money should be shared between operators and landowners on the grant of Code rights.
A huge challenge: voluntary registration of local authority land
The Land Registry is actively working with the public sector to help achieve its aim of comprehensive registration of all freehold land by 2030.
Brexit does not frustrate a lease
European organisations cannot argue that Brexit means that they can walk away from their leases.
Stamp Duty Land Tax: important changes from 1 March 2019
From 1 March 2019, the period allowed in England and Northern Ireland for filing a Stamp Duty Land Tax return and paying the tax reduces from 30 days to 14 days.
Scottish Land and Buildings Transaction Tax: changes from 25 January 2019
The Scottish government has approved plans to change Land and Buildings Transaction Tax (LBTT) rates and bands for non- residential transactions and to increase the rate of the Additional Dwelling Supplement (ADS).
Property owner prosecuted for spread of Japanese knotweed
Bristol City Council has used its powers under the Anti-Social Behaviour, Crime and Policing Act 2014 to prosecute a property owner for allowing the spread of invasive plant species Japanese knotweed.
Can commonhold be reinvigorated?
The Law Commission has issued a substantial consultation seeking to improve the manner in which the commonhold system operates and to persuade existing leaseholders to move to a commonhold structure.
Develop and be damned is not a good strategy
The Court of Appeal has held that public policy interests do not justify the release of restrictive covenants where a developer deliberately builds houses on land in breach of those covenants.
A right to play
The Supreme Court has held that rights to use sporting and leisure facilities can be easements, even where some of the facilities were constructed after the date when the easement was granted.
Failure to follow procurement rules rendered development agreement ineffective
The Court of Appeal has given its long awaited judgment in the case of Faraday Development Ltd v West Berkshire Council
Change announced to how MEES affects residential landlords
Residential landlords will be required to spend up to £3,500 of their own money improving the energy efficiency of their properties.
Telecoms Code: Operators’ entitlement to survey new sites confirmed
An important decision on the new Electronic Communications Code answers the hotly-contested issue of whether landowners can avoid the imposition of telecoms apparatus by preventing operators from undertaking initial suitability surveys.
Are you being served?
A new professional statement on service charges in commercial property has been published by the RICS.
The government pushes forward with residential leasehold reforms
The government is consulting on its plans to outlaw new leasehold houses and to ban ground rents. The consultation period lasts just six weeks.
Thinking about overage
Overage provisions are a common feature of the development landscape, helping to ensure that a landowner receives a “fair” price for its land.
Enfranchisement in the spotlight
The Law Commission has published its expected consultation on reforming leasehold enfranchisement - the area of law that enables tenants of residential houses and flats to buy the freehold of their properties or to extend their leases.
Scots commercial leases: time for reform?
The Scottish Law Commission has issued a discussion paper inviting views on the reform of six aspects of the law relating to leases of commercial property in Scotland. Responses have to be submitted by 14 September 2018.
Government consults on effectiveness of EPCs
The government has issued a call for evidence to learn how energy performance certificates (EPCs) are performing and whether they can be made more effective.
Registering a MEES exemption
A guide to registering exemptions under the Minimum Energy Efficiency Standard (MEES) was published recently.
Relocation amounted to derogation
The High Court has held that a parking agreement permitting a landowner to relocate parking spaces did not allow him to allocate different spaces hundreds of metres away. To do so was in derogation from the grant, it said.
Publication of draft bill regulating overseas entities owning land in the UK
The government is asking for comments on a draft bill that will require overseas entities owning land in the UK, or intending to own land in the UK, to disclose details of their beneficial owners on a public register.
Court of Appeal's strict interpretation of overage agreement
The Court of Appeal has upheld an obligation to pay overage where a proposed conversion project received planning consent but would breach building regulations if carried out.
Law Commission's proposals for updating the land registration system in England and Wales
Following a consultation exercise two years ago, the Law Commission has published a massive 600 page report that recommends changes to the land registration system in England and Wales and incorporates a draft Bill to achieve its proposals.
Adoption of unregistered land as highway
Unregistered land in unknown ownership can cause a headache on development and the extent of the issue will often depend upon what the land is needed for.
A notable event
A recent case involving the conversion of a hotel into flats has demonstrated the importance of protecting a contract at the Land Registry - but it does not guarantee 100% protection.
Proposals for a minimum term for residential tenancies
The government is seeking views on a proposal that new tenancies in the private residential sector should be for a minimum of three years.
A comeback for option agreements?
Planning promotion agreements (also known as land promotion agreements) have become increasingly popular among landowners and developers in recent years. Could options now be making a comeback?
An easement or a lease - the court decides
The High Court has decided that a document purporting to grant a lease of a right of way in fact created an easement.
How the courts are interpreting long-term maintenance contracts
The Private Finance Initiative (PFI) may be past its peak, but various cases have come to court in the past few years involving long-term maintenance contracts, including PFIs.
Supreme Court upholds no oral modification clause
The Supreme Court has upheld the effectiveness of a
Say what you mean - lease or licence?
The High Court has held that an agreement for occupation, despite being called a licence, actually created a tenancy and so the occupier had acquired rights under the Landlord and Tenant Act 1954.
Tenant not obliged to reinstate as condition of break
A court has construed a break option in favour of the tenant holding that it was not a condition of the exercise of the break option that the tenant should reinstate the premises to their original layout.
A lucky escape
Thanks to a lucky escape on a legal technicality, a landowner now owns his property free from a right of way created by former owners
Insurance trap for tenants
A recent case highlights a trap for unwary tenants where a lease contains an inadequate landlord's reinstatement clause.
AirBnB is a breach of residential use in a lease
On 1 May 2018, an appeal judge continued an injunction restraining a leaseholder from letting his flat as AirBnB accommodation, and approved the lower court's finding that it was a breach of his lease.
A lesson in leasing
A recent case decides that an 'entire agreement' clause in the lease of a café did not prevent the implication of a missing term.
Conditions on underletting: cumulative or alternative?
The Court of Appeal has applied a literal approach to the interpretation of underletting conditions. This overturns an earlier decision that applied commercial common sense to reach a tenant-friendly outcome.
A register of overseas companies owning UK properties
The government has issued a response to its consultation on proposals to introduce a register of beneficial owners of overseas companies that own UK property or that participate in public procurement.
No break for unregistered assignee
The assignee of a lease was not entitled to serve a valid break notice before it became the registered proprietor.
MEES - 1 April 2018 is just the start?
MEES comes into force on 1 April 2018. The current minimum energy rating is E, but landlords must be prepared for this standard to be tightened sooner rather than later.
LBTT - Happy Third Anniversary?
Land and Buildings Transaction Tax was introduced in 2015 to replace Stamp Duty Land Tax in Scotland.
A developer has been required to pay substantial damages where it did not use 'reasonable endeavours' to fulfil conditions that would have triggered an obligation to pay overage.
Asbestos risks in commercial property
It has been illegal to use asbestos in the construction or refurbishment of buildings since 1999 but historically it was widely used in building materials due to its heat, fire and sound protection qualities.
Change proposed to how MEES will apply to residential property
The government is proposing that residential landlords should contribute towards the cost of improving the energy efficiency of their properties.
Overseas companies owning UK property will have to provide details of their owners
The government has announced that overseas companies that own or buy property in the UK will be required to provide details of their ultimate owners on a public register.
Periodic tenancy: one tenancy or many?
A periodic tenancy is a single tenancy and not a series of tenancies.
New Electronic Communications Code - Scotland
With the new Electronic Communications Code coming into effect across the UK on 28 December 2017, we highlight a few points worthy of mention in respect of its operation in Scotland.
A green future?
The government has launched its long-awaited 25 Year Environment Plan - 'A Green Future: Our 25 Year Plan to Improve the Environment' (Plan). Angus Evers, Shoosmiths environmental and planning partner, gives his verdict on the comprehensive report.
Major changes proposed to how new houses and flats are sold in England
In the week before Christmas, the Government announced a range of proposals that promise to transform the manner in which new houses and flats are sold.
Electronic Communications Code now in force
The new Electronic Communications Code has come into force today (December 28) - replacing out-of-date and complex rules first introduced in 1984 and extended in 2003.
In the rush to complete deals before Christmas, it is essential not to overlook important points when negotiating leases.
Draft CIL regulations clarify CIL liability
On 14 December 2017 the draft Community Infrastructure Levy (Amendment) Regulation 2018 (the 2018 Regulations) were published.
Real Estate and the Law Commission's proposals for law reform
After an extensive consultation, the Law Commission has published its proposals for the 13th programme of law reform.
A challenge for restrictive covenants
A recent case demonstrates that a restrictive covenant is not necessarily a barrier to development of land.
Service charge changes on the horizon
The RICS has launched a consultation on the fourth edition of the Service Charge Code for commercial property.
A significant move for transparent property ownership
HM Land Registry has released data on property in England and Wales owned by UK and overseas companies. This is the latest move in plans to facilitate housing development.
Negotiating damages for breach of overage
A developer in breach of an overage agreement was liable for damages on a negotiating basis even though no overage was due.
Taking a different view
The Upper Tribunal has held that an attractive view being obstructed was not an adequate reason to prevent the modification of a restrictive covenant.
Minimum energy efficiency requirements for residential investment property
The Government has issued guidance on how the Minimum Energy Efficiency Standard regulations will apply to residential properties
Repair or replace? Sometimes it's the landlord's decision
The Upper Tribunal has decided that it was reasonable for a landlord to choose to repair windows, rather than replace them, and to recover that cost by service charge.
A room on its own may not be a dwelling
Regulations protecting tenants against unreasonable service charges do not apply to leases of individual rooms.
Landowner wins the day on overage
The High Court has found it necessary to imply a missing term into an overage agreement in order to give it business efficacy.
The polluter doesn't always pay
Local authorities will welcome a decision by the Court of Appeal that Powys County Council is not liable for contamination caused by a former landfill site operated by its predecessor. However, the decision is not such good news for landowners.
Love thy neighbour as thyself
The Court of Appeal once again voices its disapproval of disputes between neighbours, this time concerning the need to read utility meters.
Overlooking an error in the documentation
A court construes a property sale and purchase agreement to mean what the parties had intended to say, rather than what it actually said.
Don't bank on surrendering your lease if the landlord's mortgagee hasn't given its consent
The High Court has refused to imply into a deed of surrender a condition precedent that the superior landlord had obtained its lender's consent.
Showing the way
A recent case has shown that historic use by former owners can be used to claim a legal right of way, even where the claimant cannot prove that the use was without permission.
Proposal to outlaw the sale of new-build leasehold houses
The government has issued a consultation paper 'Tackling unfair practices in the leasehold market', proposing, among other ideas, restrictions on the sale of new-build leasehold houses.
A developing problem
The High Court awards a landowner £3.7million as compensation for lost profit on a development.
A new connectivity: revised Electronic Communications Code is launched
The Digital Economy Act 2017 introduces a new electronic communications code, intended to facilitate widespread connectivity and address some of the critical issues that currently beset the telecoms industry.
Where's the benefit?
A recent case is a reminder to landowners that in order to enforce restrictive covenants over a neighbour's land, they have to show that their properties enjoy the benefit.
A right of way for neighbouring land?
A right of way can normally be used for the benefit of specific land, but on rare occasions it can be used for the benefit of adjacent land.
The key to the lease-licence distinction
Two recent residential cases highlight the crucial distinction between leases and licences, and the importance of ensuring that documentation accurately reflects the true arrangement for occupation of both residential and commercial properties.
Disappointment as hotly anticipated property case settles
It has been reported that the parties in the case of EMI Group Ltd v O&H Q1 Ltd have reached a settlement.
Proposals for a register of overseas entities owning UK property
The government is planning to create a public register of overseas companies and other legal entities that own property in the UK.
Law Commission calls for regulation of retirement housing
The Law Commission is concerned that event fees charged by landlords of retirement housing are potentially unfair and need to be capped.
Underlettings - avoid picking up the landlord's dilapidations tab!
Potential undertenants must be alert to the full extent of their repairing obligation, especially if their immediate landlord has been in occupation for a significant period of time.
Consumer Code for House Builders 2017
The Fourth Edition of the Consumer Code for Home Builders will apply from 1 April 2017.
Land Registry restrictions - beware a blanket approach
Residential developers should be aware that agreeing to enter a Land Registry restriction on the title to a property may inhibit their ability to manage it.
Guidance on Minimum Energy Efficiency Standard published
The government has published the long-awaited guidance on the Minimum Energy Efficiency Standard for non-domestic properties.
Misrepresentation: Don't be so unreasonable
A landlord was unable to rely on a very wide exclusion of liability clause in a lease where it had made a misrepresentation to the tenant about the presence of asbestos in the property.
Electronic signing of Land Registry deeds - just a click away?
A consultation from the Land Registry proposes changes to the land registration legislation to allow the introduction of electronic signatures.
Hydraulic fracturing - the third way
The Planning Court has rejected a legal challenge to the grant of planning permission for hydraulic fracturing in North Yorkshire.
Housing white paper - To build or not to build?
In this article we consider the measures laid out in the government's white paper that will assist and, possibly, in some cases discourage, both developers and investors involved in the housing market.
Leases - do they require lender's consent?
It can be imperative for a tenant to ensure that lease formalities are completed as quickly as possible. Obtaining a landlord's lender's consent to the grant of the lease can delay matters. Is it vital to obtain lender's consent?
You've been framed
A landlord was not entitled to charge tenants the costs of replacing wooden window frames with metal ones merely because a small number of them required minor repairs.
When does a land contract need to comply with section 2?
A contract concerning a disposition of land does not need to comply with section 2 where it effects an immediate disposition.
The gap widens
A buyer of land, whose Land Registry application was cancelled because the plan was faulty, was bound by a right of way that the sellers accidently created after they had sold the land to the buyer.
Replies to enquiries - rights and wrongs
A recent High Court case has demonstrated the importance of giving correct replies to enquiries, and some of the consequences of getting replies wrong.
The Pedants' Revolt
The case of Dooba Developments Ltd v McLagan Investments Ltd is a useful reminder of the need to think carefully when drafting legal documents and to consider how they will be interpreted if there is a dispute.
Land Registry to stay in the public sector
The government announced in the Autumn Statement on 23 November 2016 that the Land Registry will remain in the public sector. Plans for privatisation have been dropped.
Habitat III - the applicability of New Urban Agenda
Environment analysis: As the Habitat III Conference draws to a close in Quito, Ecuador, what chances are there of its New Urban Agenda (NUA) finding a way into UK and international law?
IPMS: How does residential property measure up?
We will soon need to say goodbye to the principles of gross external area, net internal area and net sales area when measuring residential property.
Fracking up the pressure
On 6 October 2016, the Secretary of State for Communities and Local Government (SoS), issued decisions in relation to four separate appeals made by the natural resources exploration and production company, Cuadrilla.
Mind the gap
The recent case of Stodday Land Limited and Ripway Properties Limited v William Marsland Pye is a reminder of the problems that the 'registration gap' causes in relation to land ownership.
Real estate and unreal estate
This article looks at why intellectual property is key to construction and property development.
Look to the fuchsia
A recent case has demonstrated the importance of inspecting the boundaries of a property before buying it.
Consultation on how and when SDLT is paid
HMRC has issued a consultation proposing that, among other changes, the period in which SDLT has to be paid should be reduced from 30 to 14 days.
Tenancy negotiations did not lead to a binding agreement
The court has held that two parties had not entered into a tenancy agreement because the start date had never been agreed between them.
Who serves consultation notices on residential tenants?
This article considers the case of Leaseholders of Foundling Court and O'Donnell Court v Camden LBC, in which the court ruled on who is responsible for serving consultation notices on residential tenants.
Who is responsible for disrepair to communal area?
The Supreme Court has held that an intermediate landlord was not responsible for the disrepair of property over which he had only shared rights of access.
Lucky 13 for the Law Commission
The Law Commission has issued a consultation asking for suggestions for projects for its 13th programme, covering the period from 2017 to 2020.
Contract effectively varied by oral agreement
In MWB Business Exchange Centres Ltd v Rock Advertising Ltd, the Court of Appeal has decided that a provision in a contract requiring any variations to be in writing and signed by the parties did not prevent a valid variation by oral agreement.
The buck stops here
The case of Syed Balkhi v Southern Land Securities Ltd (2016) confirms that landlords cannot simply pass to their residential undertenants service charge demands received from head landlords without first ensuring they are reasonable.
New international property measurement standards
The RICS's new Professional Statement for Property Measurement came into force on 1 January 2016.
Read the signs
The Court of Appeal has decided in Trevor & Elizabeth Winterburn v Garry & Lynne Bennett (2016) that a landowner can prevent someone acquiring rights over land by clear signage alone.
Joint and several liability means assuming full responsibility
A recent case reminds us that parties who enter into a contract with joint and several liability are each liable to perform the whole contract on their own.
Clicks & Mortar: The marriage of the future and the past within a traditional retail lease structure - Part One
Multi-channel and Omni-channel retailing are, of course well established in the retail market.
Clicks & Mortar: The marriage of the future and the past within a traditional retail lease structure - Part Two
This article follows on from 'Clicks & Mortar: The marriage of the future and the past within a traditional retail lease structure - Part One' which discussed turnover rents.
Fixture, fitting or chattel? Does it matter?
In a terminal dilapidations case, the Court of Appeal had to decide whether carpet tiles were tenant's fixtures, landlord's fixtures or chattels, to determine whether the tenant would be liable for the cost of replacing them after the end of the lease.
Improving the Land Registration Act
The Law Commission has issued a consultation on possible changes to the land registration system in England and Wales.
Understanding underleases: what are the risks?
Potential undertenants need to understand the nature of their interest and the implications this has for their liability as a whole. This article highlights some risks for undertenants and suggests ways in which these may be addressed.
All reasonable endeavours and good faith
A recent Court of Appeal decision has demonstrated how detailed drafting brings clarity to the scope of 'reasonable endeavours' and 'good faith' obligations.
Surrendering a lease, not just the keys
A recent case, has highlighted that a landlord can make arrangements to secure and relet an empty property without bringing about a surrender by operation of law.
Minimum Energy Efficiency Standard: preparations investors and landlords should be considering now
The Minimum Energy Efficiency Standard (MEES) for both residential and commercial properties in England and Wales comes into force on 1 April 2018. This is less than two years away and so investors need to start to take action now.
Amending affordable housing obligations: developers be warned
Developers need to be aware of the deadline for securing amendments to affordable housing obligations under sections 106BA, BB and BC.
Consultation on moving Land Registry operations to the private sector
The Government has issued a consultation document containing options to move the Land Registry into the private sector. This is part of the Government's wider aim to raise £5 billion from sales of public sector assets between now and 2020.
Court rules that a tenant cannot assign its lease to its guarantor
The High Court has held that the anti-avoidance provision in the Landlord and Tenant (Covenants) Act 1995 prevents a tenant assigning its lease to its guarantor. Any attempt to do so will be void.
Obliged to build before contractual completion date
In a recent case the High Court has ordered, by way of specific performance, that building works must be carried out before the date specified in the contract for those works to be completed.
Shoosmiths advises Dunedin Canmore Housing on £3.4m deal
The Social Housing Real Estate team from National law firm Shoosmiths has advised Dunedin Canmore Housing on the phase 2 acquisition of their social housing development in Eskmills, Musselburgh.
Purpose built student accommodation excluded from Scottish PRS reforms
Following lobbying and sector feedback, Purpose Built Student Accommodation (PBSA) is to be excluded from the remit of the Private Housing (Tenancies) (Scotland) Bill.
Section 288 Challenges - Is there scope to think outside the box?
For a number of years, the Government has sought to narrow the scope and use of planning obligations. It has actively encouraged local authorities to adopt the Community Infrastructure Levy (CIL) when it introduced the CIL Regulations in 2010.
Misleading replies to enquiries - a costly reminder for sellers and landlords
Providing inaccurate replies to pre-contract enquiries cost a seller almost £400,000 after the buyer withdrew shortly before completion and claimed damages for deceit.
Court of Appeal clarifies occupational rights of husband after vacation of family home by wife
The case of Derwent Housing Association Limited v Taylor, 19 January 2016 has provided clarification on whether a spouse who remains in the matrimonial home has continued rights of occupation if their partner has left the home and terminated the tenancy.
'Right to Rent' checks in force 1 February 2016
From 1 February 2016 landlords of residential property in England (not also Wales) will have to carry out checks to ensure potential tenants have the right to rent property in the UK.
Housing and Planning Bill - Update: New resolution procedure for S.106 negotiation disputes
The Housing and Planning Bill has now passed through the House of Commons, with MPs concluding reporting and final reading on 12 January 2016. The Bill will now be passed on to the House of Lords for its first reading.
Can a tenant claim in respect of damage caused to his property if, for unconnected reasons, he is not living in the property when the disrepair occurs?
According to the recent case of Mansing Moorjani v Durban Estates Limited (2015), the answer is yes.
Rights to use sporting facilities held to benefit landowners
In Regency Villa Title Ltd v Diamond Resorts (Europe) Ltd, the High Court has decided that rights to use sporting facilities can take effect as easements and so benefit anyone who becomes the owner of the land in the future.
Not just any break case: Supreme Court unanimously holds that a term will not be implied to refund excess rent following a break
The Supreme Court has today released its long-awaited judgment in the case of Marks & Spencer PLC v BNP Paribas Securities Services Trust Company (Jersey) Limited.
Who owns graffiti?
When a valuable picture was painted without permission on the outside of a building, the court decided that the landlord's claim to own it was stronger than the tenant's.
Right to enter and survey land
Any acquiring authority which is considering using its compulsory purchase powers may need to enter the land to survey it before it decides to make a compulsory purchase order.
Changes to Nationally Significant Infrastructure Projects
The Housing and Planning Bill makes a couple of significant changes to Section 115 of the Planning Act 2008.
General Vesting Declarations
The Housing and Planning Bill changes the process by which acquiring authorities can exercise their CPO powers, either through a Notice to Treat or execution of a General Vesting Declaration (GVD).
Discharge of registered charge rectified because of mistake
In a recent case the High Court decided that a lender was entitled to rely on the equitable doctrine of mistake to set aside the discharge of a mortgage and undo the cancellation of a registered charge over borrowers' property.
Reserve funds - best practice for commercial landlords
Many leases provide for a landlord to create a reserve fund of service charge contributions to cover recurring costs such as maintenance, cleaning and redecoration.
Short term options: tenancies at will v licences
Landlords who wish to allow short term, flexible occupation of a property often use tenancies at will or licences to occupy. It is important to recognise the pitfalls as well as the benefits of these arrangements before deciding which to use.
Affordable housing exemptions criticised by high court
A recent high court case, involving West Berkshire District and Reading Borough Councils, provides a fascinating insight into the workings of the Department of Communities and Local Government (CLG), and the formation of National Planning Policy.
Do the math: service charge interpretation
The Supreme Court has ruled in favour of contractual certainty in a long-standing service charge dispute, notwithstanding the disastrous effect this would have for tenants.
Rentcharges in a nutshell
They are a relic from the past but investors and developers may come across rentcharges affecting their properties. What should you think about if a rentcharge has appeared on your title report?
SuDS - where are we now?
In this first article on sustainable drainage systems (SuDS), we look at recent changes in England to how they will be provided and maintained and the implications for developers.
SuDS - who will maintain them?
This is the second article on sustainable drainage systems (SuDS) and looks at options for maintenance. In our first article we looked at recent changes to the provision and maintenance of SuDS and the implications for developers.
Commercial property - landlord's consent to transfer of lease
It is common practice for leases of commercial properties to contain a prohibition on the tenant being able to assign or otherwise transfer their interest in the lease to another party without the prior written consent of the landlord.
Don't let rights get in the way: part one
Rights of way can adversely affect, or even sterilise, potential development land. Developer purchasers should be aware of what to look for and what options are available for dealing with rights that are discovered.
Terminating Assured Shorthold Tenancies - part three
This is the last of 3 articles discussing changes in the law applying to the termination of Assured Shorthold Tenancies (ASTs).
Important changes to the section 106 regime
One of the most potent elements of the CIL regulations has taken effect. This change has the potential to affect how developments moderate their impact through the use of section 106 obligations.
Split reversions: potential pitfalls
It is easy to create a split reversion but the consequences and complications that follow need to be considered carefully.
Landlords of multi-let buildings - new metering and billing requirements
New regulations on communal heating and cooling systems in multi-let buildings impose important obligations on landlords, with penalties for non-compliance.
Turnover rents: Issues for landlords and tenants to consider before signing up
In challenging and uncertain trading conditions, turnover rents have become a common method of reviewing rent in the retail sector.
Your questions answered: Can time spent 'criminally' squatting go towards time needed to establish adverse possession?
Yes: the court has held that although a person squatting in a residential building is committing a criminal offence this does not prevent him relying on his criminal act when applying to register title on the basis of adverse possession.
Construction (Design & Management) Regulations 2015
The CDM Regulations are the principal regulations for managing health, safety & welfare of construction projects and apply to everyone involved in construction and development projects. The new 2015 regulations are due to come into force on 6 April 2015.
F and G ratings in EPCs - can you let your commercial property after 1 April 2018?
There has been concern for some years that a low EPC rating may prevent a commercial property in England and Wales from being let in the future. We now have the detail of the government's plans.
Doing the deed for occupation
If a landlord grants a licence allowing its tenant to assign its lease, but a deed of assignment is never completed, what is the status of the proposed assignee if it goes into occupation?
Government response to planning application process improvements
The government has published a response to its consultation on improvements to the planning application process, the key outcome of which will be a consolidated version of the Development Management Procedure Order 2010.
Your questions answered: Will the new possession powers for ASB still allow orders against a tenant who is not the perpetrator?
When seeking a possession order due to anti-social behaviour, landlords currently rely on discretionary ground 2 Housing Act 1985 or ground 14 Housing Act 1988, depending on the type of landlord.
Plot buyer's breach - should I serve a notice to complete?
Service of a formal notice to complete in a plot purchase should not be entered into lightly - there are cost implications and practical considerations.
New Waste Planning Policy
A new Waste Planning Policy for England has been published, replacing Planning Policy Statement 10. The revised policy requires waste planning authorities to promote treatment of waste up the waste hierarchy.
Lenders beware changes to land registration in Scotland - one strike and you're out
Lenders should take note of key changes to the Scottish land registration system on 8 December 2014.
Get the rights right: easements on a sale of part
On a transfer of part of a site, complications can arise if the rights which are to benefit the land sold are not adequately addressed. This can be particularly impactive in the case of rights of way.
Your questions answered: Am I in breach of my inherited shared ownership lease by complying with the will?
Does the beneficiary of a shared ownership lease find themselves in breach if by acquiring the lease by will they inadvertently sublet the whole of the property in order to comply with the will?
Land and Buildings Transaction Tax in Scotland
The Scottish government has announced the proposed tax rates for its Land and Buildings Transaction Tax (LBTT).
Commercial property - Dilapidations at termination of a lease
Damages recoverable from a tenant: the differences in England and Scotland
Do the 'perfect' lease heads of terms exist? What is their purpose in the evolving market and which important terms need careful consideration?
Seasoned operators in the real estate market will know that if heads of terms lack sufficient information a deal may suffer delay, frustration and rising legal costs
Your questions answered: What is the legal position around disposal of goods when a tenancy is terminated or a tenant has abandoned the property?
It is agreed amongst all housing providers that an abandoned property is simply a waste of housing stock. The Torts (Interference with Goods) Act 1977 sets out how to avoid repercussions so that the property can be re let as soon as possible.
Disclaimer and rates
A landlord may be deterred from forfeiting the lease of a defaulting tenant because of the cost of business rates liability. What is the position where a lease has been disclaimed?
Can the Community Trigger procedure be summarised under the Anti-social Behaviour Crime and Policing Act 2014?
Anti-social behaviour (ASB) is something that can affect a whole community - it should therefore involve community effort. The act introduces a shared responsibility for dealing with ASB, a statutory duty known as the 'Community Trigger'.
New Part L of the Building Regulations: Clarifying compliance
The Department for Communities and Local Government has published amendments to Part L of Schedule 1 to the Building Regulations 2010 - and the transitional provisions give rise to a hidden trap for developers entering into development agreements..
Breaking Bad: episode 2: the next chapter in conditional break options
In Marks & Spencer PLC v BNP Paribas Securities Services Trust Company (Jersey) Limited, the Court of Appeal has given its judgment in the last of a series of significant break option cases.
Property transactions are frequently delayed because essential plans are not made available at the outset of a transaction.
Court says permitted use restriction breaks competition law
In a judgment that is likely to attract considerable attention, the Central London County Court has ruled that a permitted use restriction in a lease is anti-competitive and unenforceable.
Contracted out tenants: Erimus revisited
The Court of Appeal has found in favour of a business tenant and decided that, despite protracted negotiations for a new lease on expiry of its contracted out lease, a periodic tenancy had not been created in the intervening period.
Breaking Bad - Court of Appeal's decision makes life harder for tenants
In Siemens Hearing Instruments Ltd v Friends Life Ltd, the Court of Appeal has overturned an earlier decision and ruled that the formal requirements of a break clause must be followed precisely in order to determine a lease.
Are You at Risk Where a Tenant Breaches its Environmental Permit?
Landlords could be at risk of significant liability where tenants operate environmental permits on site.
Breaking Bad - Court of Appeal's decision makes life harder for tenants
In Siemens Hearing Instruments Ltd v Friends Life Ltd, the Court of Appeal has overturned an earlier decision and ruled that the formal requirements of a break clause must be followed precisely in order to determine a lease.
Is reasonableness considered when making a demotion order? - Your questions answered
Section 14 of the Anti-Social Behaviour Act 2003 gave registered providers as well as local authorities the power to demote assured or secured tenancies to a 12 month probationary tenancy. This article covers the key points you need to know.
Advance Payments Code
The Advance Payments Code provides a protection mechanism for local highway authorities to ensure that they are not unexpectedly required to meet the costs of new roads that were not intended to be maintained by the public purse.
Right of light update: a lighter touch by the Courts
The recent Supreme Court case of Coventry and others v Lawrence and another (2014) UKSC 13 should be welcomed by developers, as it heralds a shift in the Court's approach to the exercise of its discretion to award damages instead of an injunction.
Emmett v Sisson: Actionable Interference with a Right of Way
In Emmett v Sisson  the Court of Appeal was asked to consider both the extent of a right of way and whether there had been actionable interference with it.
Chancel repair liability: the latest
Chancel repair liability is an ancient liability which attaches to land and requires affected owners to meet the costs of repair of the local church chancel.
Telecoms upheaval - economic pressures and legal changes
At Mobile World Congress in Barcelona this year, leaders from the telecoms sector gathered to discuss pressing issues, conduct business - and launch their latest products.
Further reform of the Community Infrastructure Levy (CIL)
Further changes were made to the Community Infrastructure Levy Regulations 2010 (the CIL Regulations) on 24 February 2014.
Sustainable Drainage Systems (SuDS), sewer adoption and your land acquisition contract
Finding solutions to flooding is a matter of high importance for the Government, driving changes in the law relating to foul and surface water drainage. This article explores the proposed changes and how they might affect land contracts.
Can you summarise what's changed in Mutual Exchange? - Your questions answered
Pre Localism Act 2011 all mutual exchanges took place by deed of assignment. Post Localism Act surrender and re-grant is the mechanism used for mutual exchange.
Serving applications for landlord's consent
If you are a tenant under a commercial lease and wish to assign your interest, underlet, charge or part with possession then you are likely to need your landlord's consent.
Silence is not golden: the real cost of ignoring a mediation invitation
In the recent case of PGF II SA v OMFS (2013) the Court of Appeal upheld a decision of the High Court to deprive a successful party of its costs on the ground that it had not responded to an invitation to mediate.
Court of Appeal takes significant step in sentencing large companies
The Court of Appeal (Criminal Division) has given judgment on two appeal cases brought by companies contesting the level of fines each received.
Replies to Commercial Property Standard Enquiries (CPSEs): Pitfalls to avoid
Pre-contract enquiries can be time consuming and look cumbersome but replies to enquiries are an important source of information for a buyer and a seller must be aware that some stock responses can have significant legal implications.
The benefit and burden principle
As a general rule, positive obligations relating to land do not run with it - essentially they do not bind future owners of it.
Real estate: What's on the horizon for 2014 and beyond?
We take a look at the changes that anyone working in real estate can expect to see in 2014.
Who now has the right to succession?
It is important to know what changes have been made to the statutory regime for succession to a tenancy when a tenant dies
Tenancy of Shops Act in Scotland
Unlike the position in England, in Scotland there is virtually no statutory protection for a commercial tenant at the expiry of their lease.
Initial Phase of CRC: Have you registered?
The registration period for the Initial Phase of the CRC Energy Efficiency Scheme opened on 4 November 2013, and those affected have until 31 January 2014 to register with the Environment Agency.
Contracted out tenants: Take note
We tend to focus on the risks to a landlord of a tenant remaining in occupation beyond the expiry of a contracted out lease.
Judicial Review: Planning permission
In September 2013, the Ministry of Justice issued its consultation paper Judicial Review - Proposals for Further Reform, which sets out proposals to further speed up the judicial review (JR) process following the grant of planning permission.
Break options and surrenders: Effect on subletting
Where a property has been sublet, the parties to the headlease must be cautious about any determination of it.
Authorised Guarantee Agreements: Not clearly understood or properly used
Authorised Guarantee Agreements have been the subject of much commentary in the last few years - principally because of decisions in Good Harvest Partnership LLP and K/S Victoria Street v House of Fraser (Stores Management) Ltd.
New Green Lease Toolkit
The Better Buildings Partnership (BBP) has issued a new version of its Green Lease Toolkit, including new model green lease clauses and a new Memorandum of Understanding (MOU).
Prematurity and emerging planning policies
The National Planning Policy Framework (NPPF) is clear that while decision takers may give weight to emerging planning policies, the amount of such weight will depend upon the stage of preparation of the emerging plan.
Office to residential conversions and permitted development rights
Permitted development rights introduced in May 2013 are creating quite a stir. These allow the change of use of buildings from B1(a) (offices) to C3 (dwelling houses), subject to a prior approval process by the local planning authority (LPA).
Supply agreement for combined heat and power systems
It is a common feature with new developments that combined heat and power systems may be included.
Late delivery of development: Repudiatory Breach?
The recent case of Telford Homes (Creekside) Ltd v Ampurius Nu Homes Holdings considered how serious a breach of contract needs to be before it can be accepted as a repudiatory breach of contract.
Chattels and Fixtures: Remove or Not?
Peel Land and Property (Ports No.3) Limited v Sheerness Steel Limited, decided in June, considers the classification of chattels and fixtures and the tricky distinction between those fixtures a tenant may and may not remove at the end of its lease.
Please release me: Lease guarantors and licences for alterations
The recent decision in Topland Portfolio No.1 Limited v Smiths New Trading Limited is a useful reminder to landlords to join any existing guarantor into supplemental lease documents.
Tuesday 25 June was an historic day for the Scottish Parliament. A bill allowing the Scottish Government to set and collect stamp duty from the sale of properties was approved by MSPs.
Using restrictive covenants to secure overage payments
In the recent case of Cosmichome Ltd v Southampton City Council, the High Court considered the suitability of using a restrictive covenant to secure an overage payment.
Commercial rent arrears recovery: Practical steps for commercial landlords to consider
Commercial landlords will be familiar with the common law remedy of levying distress for rent.
Retail travel: An opportunity for growth
Travel locations, such as airports and train stations, are one part of the retail sector which has held up relatively well during the economic downturn.
Further twists to service charge consultation
In the recent case of Daejan Investments Ltd v Benson , the Supreme Court granted a landlord dispensation from service charge consultation requirements, overturning the decisions of the Leasehold Valuation Tribunal (LVT) and the Court of Appeal.
Property owners are at risk if Land Registry addresses are out-of-date
The Land Registry requires an address for service for owners of certain interests in land. Most significantly, it requires an address for service for any owner of registered land or of a charge over it.
Enterprise and Regulatory Reform Act: Changes to heritage planning
Significant changes to the law concerning Listed Buildings and Conservation Areas are set to be made under the Enterprise and Regulatory Reform Act, which received Royal Assent on 25 April.
Interim Rent Guide
Interim rent is a source of confusion for landlords, tenants and practitioners alike. Our team deals with hundreds of lease renewals each year, and this short guide deals with some of the more frequently asked questions.
CPR Reform: How Jackson will impact lease renewal proceedings
The 'Jackson Reforms' herald a new era in the management of and procedure for civil litigation.
Redevelopment Break Clauses
If a landlord is considering redeveloping premises but cannot yet make out the redevelopment statutory ground of opposition set out in section 30(1)(f) of the Landlord and Tenant Act 1954, all is not lost - a redevelopment break clause could be an option
Commercial leases: the pitfalls of forfeiture
Forfeiture is a common and cost-effective method of terminating commercial leases, but is not always the best course of action.
Budget 2013: Government looks again at housing supply
In his March 2013 Budget statement, the Chancellor has announced various measures targeted at promoting growth and addressing some of the structural issues with housing supply and accessibility.
Simplification of outline planning applications
The Government has continued its measures to streamline the planning process with the publication of the Town and Country (Development Management Procedure) (England) (Amendment No 3) Order 2012 (DMPO), which came into effect on 31 January 2013.
Stamp Duty Land Tax: Finance Bill 2013 - Recent Developments
This article summarises the main changes proposed in the draft clauses of the Finance Bill 2013, with particular reference to the transfer of rights (sub-sale) rules.
Exclusion of mines and minerals: the considerations
Reservations of mines and minerals have come into sharp focus over the last year, and pose a new challenge for developers.
Misconceptions in relation to Chancel Repair
There are some common misconceptions about chancel repair liability. Here, we seek to clarify two of them.
New UK Timber Regulations
New UK regulations come into force on 3 March 2013 to enforce the EU Timber Regulations.
High and dry? Flooding and uninsured risks
The Statement of Principles on the Provision of Flood Insurance was last renewed by the Government and the Association of British Insurers (ABI) in July 2008.
Break conditions in a lease: no Court of Appeal ruling on strict compliance
It has been reported in the legal press that the parties in <em>Avocet Industrial Estates LLP v Merol Ltd and another  </em> have reached an agreement in court.
Changes to Energy Performance Regulations
The Energy Performance of Buildings (England and Wales) Regulations 2012 came into force on 9 January 2013, replacing all previous energy performance regulations.
The Green Deal: Should you take advantage?
Funding under the Green Deal will be available for domestic and non-domestic properties from 28 January 2013.
Tenants' right of first refusal: Transfer to a management company
It is well known that the Landlord and Tenant Act 1987 - legislation relating to tenants' right of first refusal - is badly drafted, but developers need to be aware of a lesser known defect affecting flats schemes.
CRC - Government confirms CRC will continue in a simplified form
The Government's Autumn Statement confirmed that the CRC Energy Efficiency Scheme (
EU Energy Efficiency Directive
The Energy Efficiency Directive 2012 (EED) was brought into force on 4 December 2012. It introduces binding measures for energy efficiency on the public sector and industry and covers the entire energy chain from generation and transmission to end use.
Will an EPC rating of F or G prevent a letting?
There are widespread concerns that from April 2018 it may be unlawful to let residential or commercial properties with an EPC rating of F or G.
Petitions for winding-up: The end of a property transaction?
Before entering into any transaction involving a company, it is essential to check that no winding-up petition has been presented against it.
Will an EPC rating of F or G prevent a letting?
There are widespread concerns that from April 2018 it may be unlawful to let residential or commercial properties with an EPC rating of F or G.
Empty properties rates reliefs: further thoughts
There has been a further decision considering the effectiveness of arrangements entered into by property owners for the purposes of mitigating the effect of the rates charged on empty properties.
Assets of community value: The new village green?
Developers are well aware of the risk of a town or village green application and the delay it can cause to a potential development. The new threat of delay is a bid for an asset of community value (ACV).
Understand EPC changes or risk £5,000 penalty
New regulations affecting buildings' energy performance are due to come into force next month