Real estate disputes

Rent and service charges in an administration

Insolvency practitioners and commercial landlords are aware that following the Goldacre decision, rent and service charges payable in advance and which fall due before the appointment of an administrator are not expenses of the administration. In the recent case of Re Games Station Limited, the High Court, gave permission to the landlords to appeal to the Court of Appeal against the decision because the issue is of such importance to landlord and administrators.

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.

Update on 10% increase in general damages

In the recent case of Simmons v Castle, in which the Court of Appeal confirmed that there would be a 10% increase in general damages, the judgment was met with some concern as it effectively created an unfair windfall for successful parties who entered into a Conditional Fee Arrangement before 1 April 2013. The decision has since been appealed.

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.

Dealing with rogue landlords

On 31 August 2012 the Department for Communities and Local Government issued a guide for local authorities on how to deal with rogue landlords. The guide deals with issues such as diagnosing problems that tenants are experiencing, taking action and prosecution and deterring criminality. The manner in which local authorities will make use of this guidance is not yet clear but landlords should keep a close eye on new policies being introduced.

Considerations for unmarried couples purchasing property

The number of couples who buy property together without marrying or planning to marry is increasing each year. Consequently, the number of cases that involve a dispute over how a property is owned is also on the rise. A jointly owned property that is owned by a cohabiting couple, even if they have cohabited for a long time, is not treated in the same way as a matrimonial home would be in a divorce.

Damage caused by tree roots

In the recent case of Robbins v Bexley London Borough Council [2012] EWHC 2257 (ICC) the landowner was ordered to pay £150,000 in compensation for damage caused by tree roots to a property that lay at least 33 metres from the tree. If you have trees on your property then you may be aware that you need to prune them regularly to avoid them causing damage to neighbouring structures but you also need to consider the effect that the roots may be having.

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.

Leaseholder's right of refusal

Those living in a block of residential flats may or may not be aware that they generally have a right to purchase the freehold should it come up for sale. Part 1 of the Landlord and Tenant Act 1987 contains statutory provisions setting out when leaseholders may purchase the freehold; this is something that any freeholder wishing to sell must bear in mind.

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.
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