Property update

Legal intelligence for professionals in property.

This update contains brief details of recent property legislation, cases and other developments relevant to those involved in property.

The following topics are covered in this update:  

Easements

Energy Performance Certificates

Local authorities

Planning

Property litigation

 

Easements

Clarification of “with or without vehicles” over a right of way

Alford v Hannaford [2011] EWCA Civ 1099

In this case concerning the interpretation of the grant of a right of way the Court of Appeal held that a right to pass and repass "at all times and for all purposes with or without vehicles" over and along a track did not extend to a right to drive animals over and along the track.

Facts

A right of way was granted in 1991 to the transferee Mrs Alford, which gave her “the benefit of a right of way in favour of the Transferee and her successors in title at all times and for all purposes with or without vehicles to pass and repass over and along the track shown coloured Brown on the Plan…”.

A similar right of way was reserved in the transfer to the transferor Mr Hannaford, so that he had “a right of way at all times and for all purposes without or without vehicles and animals to pass and repass over and along the track shown coloured Blue on the Plan…”.

The main point of dispute between the parties was whether the right of way granted to Mrs Alford included a right to drive animals along the track or whether it was limited to pedestrian and vehicular use.  She argued that the words “with or without vehicles” should be regarded as a general grant rather than restricting the grant.

The court looked at the contrast between the wording of the grant and the reservation of the right and the fact that there was a striking difference between the two.  It was clear that when the transfer was drafted the scope of the rights granted and reserved had been considered; the reservation in favour of the transferor included a right of way "with or without vehicles and animals", whereas the grant of the right of way did not include animals.

Mrs Alford’s claim was dismissed.  The Court of Appeal held that the grant, read in the context of the reservation, showed that it must have been the intention of the parties at the time that the transferee was to be granted a right of way in a lesser form than had been reserved in favour of the transferor.

Practical points

This case serves as a reminder that the grant and reservation of rights should be carefully considered when drafting documents.  It is all too easy to incorporate standard wording granting rights of way (and other easements) without taking into account the circumstances of the transaction and looking carefully at the limit and extent of those rights.

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Energy Performance Certificates

New energy performance certificate (EPC) regulations from 6 April 2012

The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011 (SI 2011/2452) come into force on 6 April 2012 and amend the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007.  The main changes which will affect EPCs and air conditioning reports are:

• An EPC will be required before marketing for all properties whether residential or commercial and whether for sale or rent.  Currently sellers of residential properties have 28 days in which to provide an EPC, although residential (but not commercial) properties that are marketed shortly prior to 6 April 2012 can continue to benefit from the longer time periods for obtaining an EPC. 
• There will be an obligation to use all reasonable efforts to ensure that an EPC is obtained within seven days of marketing the building (although there will be an additional 21 day period during which the EPC can be obtained, if it has not been obtained within the initial seven day period).  The regulations have clarified the doubt as to whether an EPC can be delayed so that it can be provided shortly before exchange of contracts, as this will no longer be the case.
• Written property particulars must include a copy of the full EPC.  It is no longer possible to include only the asset rating.  The changes relating to written particulars will apply to properties marketed on or after 6 April 2012.
• Where an air conditioning report is required it must be registered onto the central EPC register.  A fee can be charged for lodging an inspection report on the register

 

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Local authorities

Community Right to Reclaim Land

The DCLG has created a new Community Right to Reclaim Land which aims to help communities to improve their local area by making information about land owned by public bodies more easily available, and help to ensure that underused or unused land owned by public bodies and some other organisations is brought back into beneficial use.

Under the Local Government, Planning and Land Act 1980 the public are able to submit a "public request to order disposal" (PROD) which gives them the power to request that empty public sector land, owned by local authorities and a limited number of other public bodies, is sold off.  This power has been rarely used, mainly because not many people were aware of its existence, so an improved PROD system (now a Request) has now been incorporated into the new Community Right to Reclaim Land.

The DCLG have a dedicated page on their website, which explains how the public can submit a Request, which once completed can be submitted to the Secretary of State for Communities and Local Government.

Anyone can send a Request to the Secretary of State setting out why they think:

• land or property covered by the Request process is under-used or vacant
• there are no suitable, consulted upon and publicly tested plans in place or likely to be put in place in an acceptable period of time
• why the land should be disposed of in order to enable it to be brought back into use.

The improved process for requesting the sale of public land and property will be one way of applying for land to be released by Government departments.  It will also apply to land owned by councils and other public bodies.

Link to DCLG: Community Right to Reclaim Land

Latest guidance published on the Community Infrastructure Levy

The DCLG has published Community Infrastructure Levy: collection and enforcement - Information document.  The document explains how the Community Infrastructure Levy Collection and Enforcement provisions work in practice.  This document is not statutory guidance but it provides information for local authorities and other interested parties about collecting and enforcing the levy.

 

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Planning

Enforcement notices must be precisely drafted

Egan v Basildon Borough Council [2011] EWHC 2416 (QB)

This case concerned one of the well-publicised disputes on the Dale Farm site in which the High Court considered the extent to which enforcement notices gave Basildon District Council the power to take direct action to remove unauthorised development on the site.

The local planning authority (LPA) had served 53 planning enforcement notices on the residents at Dale Farm which included the removal of hard standings.  There were buildings constructed on the hard standings but (apart from one notice) the notices did not expressly require the demolition or removal of these buildings.

The High Court looked at the incidental powers available to councils under section 111 of the Local Government Act 1972 which gives them the power to carry out anything that is “calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions” including the removal of such buildings.  The High Court held that section 111 did not give the LPA the power to demolish and remove a building or structure which was present when the enforcement notice was issued (but was not mentioned in the notice), even if the building was unlawfully erected on the hard standing.

The LPA should have included the demolition of the buildings in the enforcement notice if they were in already in existence.  The court emphasised that enforcement notices must be strictly construed as non-compliance is a criminal offence; any doubt or uncertainty as to the meaning or wording should be interpreted in favour of the recipients.  However the burden of proof as to when the buildings were constructed now falls on the residents to establish that the buildings were there before the notices were served.

Practical points

This case provides a useful clarification of the scope of the incidental powers under section 111 of the Local Government Act 1972.  It is clear that an LPA cannot rely upon these powers in connection with enforcement action, they must carry out all procedures correctly, particularly the drafting of enforcement notices. 

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Property litigation

Provisional Dilapidations Protocol adopted as part of the CPR

The Property Litigation Association’s (PLA) Pre-Action Protocol for Terminal Dilapidations Claims for Damages has been approved for formal adoption into the Civil Procedure Rules.  The PLA has provisionally published a revised version of the Dilapidations Protocol which is expected to come into force on 1 January 2012.

The PLA have been trying for some time to persuade the government to adopt the Dilapidations Protocol into the CPR.  The previous version was last updated in May 2008 and whilst it is regarded as best practice and is annexed to the RICS’s dilapidations guidance, it has no formal status as such.

Once formal adoption takes place, if a party to a court action does not follow the provisions of the Protocol, the court can examine the reasons for the failure to do so.  If the court finds there has been a flagrant disregard of the Protocol they are able to make an order for costs against the defaulting party, irrespective of which party is ultimately successful in the action.

The final version has yet to be published, but the revised version is substantially the same as the 2008 Protocol.  The main change is that the that the tenant's surveyor will now be required to endorse their response to the landlord's claim, confirming that the works the landlord has suggested are reasonably required to remedy the alleged breaches and put the property back into the condition required, and that any costs quoted for such works are reasonable.  The 2008 Protocol requires only the landlord’s surveyor to produce an endorsement relating to the works.

Link to the revised version of the Dilapidations Protocol

Assured tenancy created in error

Saxon Weald Homes Limited v Dayne Richard Chadwick [2011] EWCA Civ 202

The Court of Appeal has held that a letter from a landlord to its tenant stating that his probationary tenancy had been completed and that he was now an assured tenant was a notice for the purposes of the Housing Act 1988 Schedule 2A paragraph 2.  The tenant could rely on the letter despite the landlord having previously indicated that it was seeking possession of the property.

Facts of the case

On 11 August 2008 the landlord Saxon Homes (S) granted the tenant Dayne Chadwick (C) an assured shorthold tenancy of a one bedroom flat under a probationary tenancy agreement.  The main terms of this agreement were:

• for the first 12 months it will be a periodic assured shorthold tenancy and C will occupy the property as an assured shorthold tenant
• if at the end of 12 months S hasn’t taken steps to terminate the tenancy, it will automatically convert into an assured periodic tenancy
• if steps are taken to terminate the tenancy the tenancy will continue as an assured shorthold tenancy until S recovers possession
• if the tenancy converts to a fully assured tenancy S will write to C informing him of the change in status of the tenancy.

Shortly after the tenancy commenced there were complaints from other tenants in the block of flats that C engaged in anti-social behaviour.  Despite meetings with C and warning letters being sent to him, his behaviour did not improve and on 7 August 2009 (shortly before the probationary period was due to expire) S served notice on C seeking possession, of the property.  The letter stated that as the notices had been served requiring possession, C would remain at the property as an assured shorthold tenant under his probationary tenancy.

However, on the anniversary of the start of the tenancy on 11 August 2009, S wrote to C (in error) sending him their standard letter stating that he had successfully completed his probationary tenancy and that he was now an assured tenant of the property.  S then continued to seek possession of the property and commenced court proceedings.

The appeals

At the first hearing the Deputy District Judge accepted S’s argument that the anniversary letter of 11 August was a routine letter sent by a housing assistant in ignorance of the earlier letter of 7 August seeking possession of the property.  He found that C’s tenancy had not converted to an assured tenancy and therefore S was entitled to an order for possession.  C appealed.

On appeal, the judge found that the anniversary letter was a notice for the purposes of the Housing Act 1988 Schedule 2A paragraph 2 and therefore C was now an assured tenant.  S appealed to the Court of Appeal.

S’s argument was that the judge had erred by failing to take into account the context and background in which the anniversary letter was sent to C.  S further submitted that had the judge had proper regard to the test in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (1997) he would have found that the anniversary letter would have conveyed to a reasonable recipient that it was not a notice under the Housing Act but simply an incorrect acknowledgment of a state of affairs that had never existed as C had never successfully completed the probationary 12 month tenancy.

The decision

The Court of Appeal dismissed S’s appeal.  There was no ambiguity in the meaning or effect of the anniversary letter and it was quite clearly sufficient to be a notice within the ambit of paragraph 2 of Schedule 2A.  S’s attempt to rely on the background (i.e. the letter having been sent in error) to dispute that conclusion was misplaced.  A tenant was not ordinarily expected to enquire into, or think about, a landlord's reasons for serving an otherwise unambiguous notice in connection with a lease.  In any event a tenant might well think that a landlord had simply changed its mind from its previous indicated intention.

As for the Mannai argument, the Court distinguished it on the basis that Mannai involved an identifiable internal ambiguity within the notice itself.  The circumstances in this case were completely different as there was no such ambiguity; there were no mistakes in the wording of the letter, the mistake that S made was that the letter should not have been sent at all.

 

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