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Certificated bailiffs are much used by the property industry to recover rent arrears or to peaceably re-enter commercial property, without the intervention of the courts, if a tenant fails to pay rent or comply with a notice served pursuant to s146 Law of Property Act, 1925.  Bailiffs may also, for instance, recover Council Tax, parking fines or execute court judgements.

Bailiffs may be employed by private companies or by Her Majesty’s Court Service.  National Standards, introduced in 2002 by the Lord Chancellor’s department (now the Ministry of Justice), are for use by all enforcement agents.  Further, the Civil Enforcement Agency, representing private certificated bailiffs, has its own Code of Conduct and Good Practice Guide.  Nevertheless, the intimidating and threatening behaviour of some bailiffs has led to complaints.

The Tribunals, Courts and Enforcement Act 2007 was to abolish the common law right to recover rent arrears and introduce a new system for the recovery of commercial rent arrears (’CRAR’).  However, this section of the Act was never enforced.  Further, the Law Commission advised in its Report, Termination of Tenancies for Tenant Default, upon the abolition of the present law of forfeiture, including the law relating to peaceable re-entry. and the introduction of a new statutory scheme, including a summary termination procedure.  Again this was not implemented.

However, on 13 January 2012, the Justice Minister, Jonathan Djanogly, unveiled updated National Standards outlining minimum standards of behaviour expected of bailiffs.  The Minister said that whilst he knew the majority of bailiffs are responsible “too many are not”.  This is said by the Ministry of Justice to be the first step in Government plans to change regulation of bailiffs.  So, watch this space and to hear more, why not contact Hatherleigh Training?

A reviewed rent is very often agreed between the parties.  However, on occasions, the matter might be referred to a third party for determination.  Many leases state an independent expert be appointed but some parties require the appointment of an arbitrator believing his/her decision easier to appeal to the courts.

S69 of the Arbitration Act 1996 states that a party cannot appeal an arbitrator’s decision without the consent of the other party or the leave of the court.  Leave will only be granted it the appealing party can show either that the arbitrator’s decision was obviously wrong or that the question is of general public importance and the decision was open to serious doubt.  Finally, the appealing party must, under s69, show that it is just and proper for the court to determine the issue.

In HMV UK Ltd v Propinvest Friar Ltd Partnership [2011] CofA 1193, a well known and well respected landlord and tenant QC was appointed Arbitrator to determine a legal issue which arose between the parties at rent review.  The Tenant, disappointed  with the decision, applied to the courts for leave to appeal stating that the Arbitrator was ‘obviously wrong’.

The Court of Appeal held rights to appeal under the 1996 Act are severely restricted and it was not sufficient to show that a judge might or even would have come to a different decision.  To be obviously wrong, the Arbitrator’s error should be obvious to the judge on a perusal of the Award itself.  An oral hearing should not generally be necessary.  Further, in an obiter comment, the Court of Appeal stated there was authority for the view that it was not just and proper for the court to determine a question where the parties had chosen it be determined by their own appointee.  The Tenant’s appeal was dismissed.

If you wish to hear more, why not contact Hatherleigh Training?

Choice of an arbitrator, impartial and independent of each of the parties involved, can present difficulties.  A and others v B and another [2011] EWHC 2345 (Comm) reminds us about justifiable doubts as to impartiality pursuant to s24(1)(a) Arbitration Act 1996.

The parties selected a QC to act as sole arbitrator.  He had, in the past, been instructed by both parties’ solicitors as, the judge later commented, one would expect of experienced and competent counsel specialising in the relevant field.  In late 2009 he held a procedural hearing and fixed the hearing of the arbitration for September 2010.  Also in late 2009 an issue unexpectedly arose in a case in which he had been instructed previously by one of the firms of solicitors acting in the arbitration.  The arbitrator mentioned this wholly unconnected case after a three day hearing in September 2010.  This did not provoke any adverse response from the other solicitors involved in the arbitration until after he published his award.

The judge, Mr Justice Flaux, reviewed the relevant cases and applied the test suggested by Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357: “The question is whether the fair-minded and informed observer having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”   Although the fair-minded and informed observer is not to be regarded as a lawyer, he or she is expected, Mr Justice Fkayx stated on the authorities, to be aware of the way in which the legal profession in this country operates in practice.  Nevertheless, counsel for the applicant felt the independent observer would be concerned that the arbitrator may have been unconsciously biased in favour of the party whose solicitors were instructing him in another case.  Whilst Mr Justice Flaux found the submissions attractively and beguilingly put, he could not accept them.

If you wish to hear more, why not contact Hatherleigh Training?

Most people, these days, give some consideration to the environment particularly if forced to do so by regulations e.g. when recycling rubbish, disposing of a domestic refrigerator, or paying for plastic bags etc.  However, how many property occupiers stop to think about the ozone layer before switching on their premises’ air conditioning system?

Air conditioning has long been a tenant’s market requirement albeit that its existence can lead to higher rentals and the monetary cost of regular servicing and maintenance can be high.  Maintenance often includes topping up the system with a HCFC gas known as ‘R22′, a widely used refrigerant.  However, R22 falls foul of European Regulations and a gradual ban on its use has been in existence since 2004.  A total ban is faced from 1 January 2015.  Until then, maintenance engineers may use a decreasing amount of recycled R22 in existing systems.

And then what happens?  Without R22 some plant and machinery will become un-maintainable and will need to be replaced.  Pursuant to the Regulations, it is the ‘operator’ who is responsible for compliance i.e. the person exercising power over the technical functioning of the equipment and system.  However, it is in the arena of landlords and tenants where problems will really arise.  The answer as to who pays replacement costs will depend on the wording of the particular lease involved.  One of the questions to be asked is whether un-maintainable plant and machinery amounts to it being out of repair?  This has implications for both covenants to repair and service charge payments.  Further, the uncertainty will almost certainly lead to disputes when negotiating a new lease, at lease renewal and at rent review.

If you wish to discuss further, why not contact Hatherleigh Training?

In July 2011, we looked at the Court of Appeal case Ibrend Estates v NYK Logistics, a 2011 decision which gave excellent judicial guidance on the meaning of ‘vacant possession’ i.e. in essence, empty of people and substantially empty of chattels.

Chattels are personal, moveable items for instance, furniture.  They are not affixed to the property in which they stand and it is important to distinguish between a chattel and a fixture.  Joyce J considered the difference over a hundred years ago in  Lyon v London City & Midland Bank [1903] 2 KB 135 and his words echo down to us today:

“No doubt a chattel on being attached to the soil or to a building prima facie becomes a fixture, but the presumption may be rebutted by showing that the annexation is incomplete, so that the chattel can be easily removed without injury to itself or to the premises to which it is attached, and that the annexation is merely for a temporary purpose and for the more complete enjoyment and use of the chattel as a chattel.”

When yielding up or giving vacant possession of premises, one must identify the ownership of fixtures.  A tenant may, for instance, install trade fixtures which, whilst attached to the property, it will remove at the the lease end.  However, the degree of annexation may be so complete that the fixture becomes part of the very fabric of the premises and fall within the ownership of the landlord.  Of course, a tenant may, in such circumstances, be required to remove its alterations to the demised premises at the lease end but it all depends on the wording of the specific lease.  Read it with care.  Whilst a tenant can remove its own fixtures, it cannot remove those of the landlord unless the lease states otherwise.

If you wish to hear move, do contact Hatherleigh Training.  We would be pleased to assist.

Historically, claims to rights to light have most commonly arisen in the City of London where further development in this crowded square mile has almost inevitably led to interference with neighbours’ easements.  However, the sums reportedly paid in compensation have led to a rise in claims as lawyers become more familiar with this ancient right.

As we see the courts enforcing rights by way of injunction both to prevent development and to demolish that which has been built in breach of a right, developers have found their potential profit diminish.  Additionally, in order to protect their community plans, local authorities have been known to acquire an interest in land thus overriding claims pursuant to s237 Town and Country Planning Act 1990.

As we reported in June 2011, the Law Commission recognized the need to look into this area of law and in its eleventh programme of reform published in July, it confirms that it will investigate whether the current law by which rights to light are acquired and enforced provides an appropriate balance between those benefiting from the rights and those wishing to develop land in the vicinity.

The Commissioners state “We intend to commence this project in early 2012, publishing a consultation paper in early 2013.  We will, in discussion with the Department for Communities and Local Government, review how the project should be taken forward at the time of publishing our preliminary proposals and after analyzing the responses to our consultation.  If both the Commission and Government agree that further work is appropriate, we will aim to produce a final report, with draft bill, late 2014 or early 2015.  If either party decides at an earlier stage that the project should not continue, we will produce a narrative report of our conclusions.”

If you would like to hear more on rights to light, why not contact Hatherleigh Training?

Many have pondered over the meaning of the words ‘vacant possession’ and judges have struggled with the concept created by their use.  They frequently occur in property agreements be it a lease (e.g. in a covenant to yield up, a rent review or a break clause), a sale and purchase contract or an option agreement.  Lord Justice Rimer in the Court of Appeal case NYK Logistics (UK) Limited v Ibrend Estates BV [2011] EWCA Civ 683 had no such problems, however and said:

“It means that at the moment that ‘vacant possession’ is required to be given, the property is empty of people and that the purchaser is able to assume and enjoy immediate and exclusive possession, occupation and control of it.  It must also be empty of chattels, although the obligation in this respect is likely only to be breached if any chattels left in the property substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property.”

The case concerned a tenant’s option to break its lease conditional upon paying rent due up to and including the termination date and having delivered up vacant possession of its premises.  It served a valid notice and had it complied with the conditions, the lease would have been determined.  However, it was side tracked by service of a schedule of dilapidations with which, where valid, it was determined to comply.  Two days before the termination date, it met wth the landlord’s agent and agreed a few outstanding items required attention.  It failed to finalise them before the termination date and its workmen remained on site.  The property was not therefore empty of people and vacant possession was not delivered up.

If you wish to hear more about vacant possession why not contact Hatherleigh Training?

Following a comprehensive legal review of easements, covenants and profits a prendre and publication of a Consultation Paper in 2008, the Law Commission published its long awaited Report on 8 June 2011.  Its aim is “to simplify the law, remove contradictions and anomalies, and minimise the need for litigation”.  Appended to the Report is a draft Bill and Explanatory Notes.

It addresses difficult areas of law governing relationships between differing land owners - in particular the rights of one owner to make use of or take something from another’s land, and obligations relating to use of land.  The Report examines existing law, recommends reform and translates recommendations into proposed legislation.  In particular, it looks at the acquisition and creation of an easement or profit through prescription and implication and the law relating to abandonment.  It recognises that the existing law of freehold covenants suffers from serious defects and recommends the introduction of a new legal interest called “a land obligation”.  The Commission wishes to see reform and clarification in the registration of land titles as seen in other jurisdictions and addresses extending the jurisdiction of the Lands Chamber of the Upper Tribunal (”the Lands Tribunal”).

The Report addresses freehold covenants (not leasehold) but does not consider public law rights, such as public rights of way.  Nor, sadly, does it review specific private rights such as rights to light, although the Commission recognises the need for further work in this area.

The full Report is, as one would anticipate, lengthy.  If you wish to hear more, why not contact Hatherleigh Training?

No enforcement action can be taken for breach of planning control in respect of a change of use of any building to a single dwelling house after four years from the breach (s171B (2) Town and Country Planning Act 1990).  The section seemed clear enough to Mr Beesley when he constructed a building, which externally appeared to be a hay barn for which he obtained planning permission in 2001, but internally was a fully fitted-out dwelling house built and in to which he moved in 2002.  In 2006 he made an application for a certificate of lawfulness for use of the building as a dwelling house which internally at least, was exactly what it was.

The local planning authority refused the certificate.  Mr Beesley obtained one on appeal.  This was upheld by the Court of Appeal.  The Council appealed again claiming there had been no change of use (the building never having been used for its permitted use) and second, even if it had been, public policy would not allow Mr Beesley to profit from his own wrong.

The Supreme Court unanimously allowed the appeal.  It held that the building was not the permitted barn but a dwelling.  There had, therefore, been no change of use within the meaning of the 1990 Act.  In these circumstances, the Court did not need to address the Council’s second issue but due to its importance, did so.  It found that positive and deliberate misleading statements which prevent discovery of the unlawful use would frustrate the policy of the Act and would damage the public’s confidence in planning law.  (Secretary of State for Communities and Local Government and another v Welwyn Hatfield BC [2011] UKSC 15.)

Why not keep up with property case law and legislation through Hatherleigh Training?

One year ago we referred to the case of Jones v Kaney.  A medical consultant appointed by the claimant in a personal injury case faced her client’s negligence proceedings.  She pleaded immunity of suit.  The judge felt constrained by existing case law and agreed with the expert.  He thought the Court of Appeal would be similarly bound and in consequence took the unusual step of certifying that the matter should go straight to the Supreme Court.

No less than seven Supreme Court judges heard the case in January 2011 although their judgements were not given until 30 March 2011.  By a majority of 5:2, the Court abolished the immunity from suit for breach of duty in contract and in negligence that expert witnesses previously enjoyed when participating in legal proceedings.  In so doing, the Court followed the House of Lords in abolishing a barrister’s immunity from liability in negligence, there being no contractual relationship between a barrister and the lay client, in Hall v Simons [2001] 1 AC 615.

In giving his lead judgement, Lord Phillips identified various justifications advanced for the immunity - a reluctance to testify, a necessity to ensure expert witnesses give full and frank evidence to a court, harassment by vexatious claims for breach of duty and finally, the risk of a multiplicity of suits.  In each case, Lord Phillips concluded that expert witness immunity from suit could not be justified.

We await the outcome of this decision.  Insurance premiums and no doubt fees will increase.  Lord Phillips appreciated the apprehension that expert witnesses may now be subject to vexatious claims but questioned the extent to which this apprehension is realistic.  However, in giving her dissenting judgement, Lady Hale thought the effect on disappointed litigants a major concern.

If you wish to hear more, why not contact Hatherleigh Training?