February 2013 Archive

Mental health and borrowers

Getting the balance right when identifying and dealing with customers who have mental capacity limitations is vital. This isn’t anything new and is already stipulated by our Regulators but recent media coverage indicates as an industry we still haven’t quite got it right. When looking at your own operation can you honestly say you fully demonstrate compliance and act in the spirit of how the regulations were written?

Valuers' margin of error and lenders’ contributory negligence

In valuer claims, what margin of error is allowed before a valuation is negligently wrong? Also, what type of lending practices do the courts consider negligent? The recent cases in this area, Webb Resolutions v E.Surv [2012] and Blemain Finance v E.Surv [2012], provide more guidance and affirm the position in the K/S Lincoln case on margins and GMAC v Countrywide on lender contributory negligence.

Ability for a landlord to recover insurance premiums

The case of Sadd v Brown highlights the need to ensure that a lease clearly and expressly states exactly what a landlord can recover as the courts will be reluctant to imply a term to cure what would otherwise be considered a defective lease. This case involves a challenge in the Leasehold Valuation Tribunal. Here a tenant of a flat in a building challenged the reasonableness of the proportion of the insurance premium included in the service charge. The lease did not expressly oblige the tenant to reimburse the landlord for the insurance premium.

Variations to section 106 planning obligations

On 28 February 2013, amendments to the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 come into effect. Previously, section 106A of the Town and Country Planning Act 1990 provided that planning obligations could not be varied or discharged until the expiry of five years from the date they were entered into. A formal application had to be made to the local planning authority in which the developer would have to show the obligation no longer served a ‘useful purpose’.

A cautionary tale of constructive dismissal

A recent case, where a claimant successfully pursued a claim for constructive dismissal through the employment tribunal, is a timely reminder to employers to make sure that the implied duty of mutual trust and confidence is not breached when discussing disciplinary matters with employees. In the case of Five Elms Medical Practice v Hayes, when the employer challenged the ET decision it was upheld by the EAT.

Increasing sector borrowing capacity

With grant funding now heavily constrained to support new developments, the amount of available security required to borrow against will become a real issue in the next few years for housing associations. In this article, Carol Matthews describes a possible mechanism for significantly increasing the sector’s lending capacity.
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