2015 round up – property disputes

31 Dec 2015 | Comment

The property dispute team has been using some post-Christmas quiet time to reflect on what has been a rather busy year of blogging about some interesting developments in case law during the course of 2015.

Back in January and February, we saw the Court concern itself with principles of adverse possession and town and village greens. In the case of Best v Chief Land Registration [2015] EWCA Civ 17 (read our blog here) the Court of Appeal held that the fact that squatting is now a criminal offence did not prevent a claim for adverse possession of registered land. In the unconnected case of R (Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7 (read our blog here) the Court of Appeal considered whether a beach and harbour could be a town or village green.

March saw an interesting High Court decision about whether restrictive covenants which were over 100 years old were still enforceable in the case of Birdlip Ltd v Hunter [2015] EWHC 808 (Ch) (read our blog here). In April (hard as it is to believe in the midst of all this rain) we were experiencing a dry spell and were considering liability for grass fires which were affecting parts of the South Wales Valleys (read more here).

The month of May saw the general election. Following the election of a majority Conservative government we considered what the government plans to repeal the Human Rights Act 1998 and create a British Bill of Rights might mean for the property sector (read our blog here).  We also looked at the provisions of the Small Business Enterprise and Employment Act 2015 which relate to home businesses (read our blog).

The summer saw us return to the topic of adverse possession. In particular a decision of the Upper Tribunal in Smith v Frankland [2015] UKUT 294 which looked at what happens in an adverse possession case if the possessor is in possession only of part of the land  (read our blog). We also looked at a decision relating to claims under the Party Walls Etc Act in Bridgland v Earlsmead Estates [2015] EWHC B8 (HC) (our blog is here); the existence of historic public rights of way in R(Andrews) v Secretary of State for Environment Food and Rural Affairs and others [2015] EWCA Civ 669 (our blog is here); and July saw a crucial decision about the status of a framework agreement for the purposes of a landlord’s consultation obligations in  Royal Borough of Kensington & Chelsea v Lessees of 1-24 Pond House [2015] UKUT 0395. This is a crucial issue for our social housing sector clients who are regularly involved in section 20 consultation procedures (read our commentary here).

In August, our blog turned to our activities in the Agricultural and Rural Sector. We attended a number of agricultural shows throughout the summer where we met numerous of our clients. We led discussions about issues which are currently affecting the Sector involving politicians and other key stakeholders in the sector. Read about our trip to the Royal Welsh Show.

Relief from forfeiture was also a topic of concern during the summer when we reviewed a Court of Appeal case which looked at when the court should grant relief from forfeiture where the tenant’s breach was deliberate and flagrant. Read our commentary on Freifeld v West Kensington Court Ltd [2015] EWCA 806 here.

As summer came to an end we looked at further provisions of the Small Business Enterprise and Employment Act 2015, particularly relating to the end of the beer tie (read our blog here). Since then, the Dept for Business Innovation and Skills has launched a two-part consultation on the Pubs Code and the Pubs Adjudicator which closes on 18 January. See more at here.

September saw the court considering whether a tenant had the right to remove and sell a Banksy mural which had appeared on the property in The Creative Foundation v Dreamland Leisure [2015] EWHC 2556 (Ch)  (read our blog).

October saw some considerable changes in the sphere of residential tenancies and, notably, the further divergence of the law in England and Wales. Read our blogs covering these changes here and here.

In November the Wales Bill 2015-16 was published and we looked at what this means for fracking and other forms of unconventional energy extraction in Wales (read our blog). The Welsh Government launched its private landlord licensing scheme which came in to force in Wales on 23 November (details here and here). And the Upper tribunal refused an application to discharge a restrictive covenant which was made in 1959 in Re Snook and Snook [2015] UKUT. There had been no or little change in the character of the neighbourhood, so the covenant still served a purpose and was still of benefit to the neighbour who would be adversely affected by the construction of another dwelling.

As if the year had not been busy enough December saw what many commentators regard as the most important property litigation case of the year when the Supreme Court handed down its long awaited decision in Marks and Spencer v BNP Paribas Securities Services Trust Company [2015] UKSC 72. The final decision in this ongoing saga, being that without an apportionment clause in a commercial lease there is no ability to recover a period’s rent paid in order to ensure compliance with the conditionality attached to a break clause. The case has wider implications about implying terms into leases (read our blog here).

Also in December, the High Court provided a reminder that a landlord wishing to recover a debt against the former tenant under an Authorised Guarantee Agreement must serve notice within six months in Lee v Sommer [2015] [unrep] (read our blog here); the case of Regency Villas Title Ltd v Diamond Resorts [2015] EWHC 3564 considered whether a right to use a golf course, swimming pool and tennis court was capable of existing as an easement, and confirmed they were. The case demonstrates that the class of easement is not closed; and in R (Kigen and another) v Secretary of State for the Home Dept [2015] EWCA Civ 1286 the Court of Appeal confirmed that the court may not accept that delays in the grant of legal aid justify a delay in pursuing judicial review claims (read our blog here).

We hope you have found reading our blogs useful and that you will continue to read them in 2016. For now we wish you a very happy New Year.

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