Real estate disputes

High-cost cases to escape new management rules

1 April 2013 is a key date with regard to litigation funding as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 becomes law. From this date ATE premiums and success fees will no longer be recoverable from losing defendants and damages based agreements will be introduced. However in regard to cost management, the judiciary has decided that commercial cases worth more than £2m will be exempt from new costs management rules in an amendment to the Civil Procedure Rules finalised last week.

Pursuing claims against defendants where there are doubts about their mental health

When considering bringing a claim there are a number of questions that must be answered, not least whether the defendant is capable of complying with the remedy that is being sought. However, particular consideration should be given where there is evidence on the facts that the Defendant may be a “person under a disability” due to mental health issues. If that is the case then the court may refuse to issue a judgment or a warrant until further enquiries are made by the claimants in this regard.

Forfeiture of residential long leases

When seeking to recover arrears of service charge, the simplest method is to issue county court proceedings; in around 80% of cases, nothing further is needed. Once a county court judgment (CCJ) is obtained, the arrears are paid either by the defaulting tenant or, more usually, by their mortgage company. However, in cases where the tenant and/or their mortgagee fails to pay, the ultimate sanction is forfeiture.

Terminating a commercial oral tenancy

A number of difficulties can arise where the tenancy of commercial premises has not been recorded properly in writing. Usually these types of tenancies will form into periodic period tenancies and the length of the period will be determined by the frequency of the rent payments. If the agreement is for rent of ‘X’ amount a year payable monthly then a yearly periodic tenancy would have been created. However, if the rent is agreed at ‘X’ amount per month then a monthly periodic tenancy will have been created.

Criminal offence to squat in a residential building

The statutory instrument which enacts Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has now been made. This means that from 1 September 2012 it will be a criminal offence to squat in a residential building. Anyone squatting in a residential building at that date, even if they entered before the 1 September 2012, will be committing a criminal offence if they originally entered without permission.

Recovery of unpaid rent from subtenant

If a tenant has not paid a quarter’s rent and the premises is sublet then it is possible for the landlord to serve what is known as Section 6 Notice, which is a notice under Section 6 of the Law of Distress (Amendment) Act 1908. The notice requires the subtenant to pay the rent the subtenant would normally pay to the head tenant to the superior landlord until such time as the arrears specified in the notice are paid off.

Landlord and tenant fixtures - who owns what?

A question that we are often asked is “How do you identify what is a landlord’s fixture and what is a tenant’s fixture?”. This becomes particularly important to the parties at the end of a lease. Who the fixtures are attributed to can have a very significant impact on the way they should be treated. To be considered as a tenant’s fixture the items must have been affixed to the premises by or on behalf of the tenant and belong to a recognised category of tenant’s fixture.

Insuring property against flood risk

Under an arrangement called the Statement of Principles on the Provision of Flood Insurance, the insurance industry has since 2000 agreed to keep flood insurance available for most properties in the UK in return for the government agreeing to effectively manage the flood risk in the most high risk areas. That policy will come to an end in June 2013 and there is no intention at present for it to be replaced in its current form.

Neighbour planning (referendums) regulations 2012

The Neighbourhood Planning Regulations came into force on 6 April 2012. These give neighbourhood planning powers to designated community groups (Neighbourhood Forums) to plan and protect certain local developments that they need for planning applications submitted. However, neighbourhood developments plans and neighbourhood development orders must pass referendum before taking effect.
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