Developments and disputes

The recent changes in relation to the new regulations governing prescribed forms and protection of deposits could well be significant for landlords of residential properties alongside their advisers, potentially affecting their ability to obtain possession.

The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 came into force on 6 April 2015 and make changes to various types of prescribed form notices under the Housing Act 1988. Most significantly, the section 8 notice seeking possession now includes the new mandatory ground 7A brought in by the Anti-social Behaviour, Crime and Policing Act 2014. It should be noted that the Act requires notices to be in the prescribed form, although it does permit dispensation where it is just and equitable to do so. Equally, landlords and advisers should be aware that the changes do not affect the validity of notices served before 6 April 2015.

Moreover, section 32 of the Deregulation Act 2015 inserted section 215A into the Housing Act 2004 and extended the requirement to secure tenants’ deposits received before 6 April 2007 in a tenancy deposit scheme and the obligation to provide the prescribed information.

Landlords failing to register such deposits within 90 days of the Act coming into force (i.e. before 23 June 2015) may suffer financial penalties and could be prevented from recovering possession if the deposit is not repaid in full prior to the service of a section 21 notice.

Of relevance to both transactional property lawyers and residential lettings is the newly landed Consumer Rights Act 2015, which received royal assent on 26 March 2015. The Act reforms and consolidates consumer law and introduces a new regime for dealing with unfair contract terms, though a great deal of the provisions of the Act potentially of interest to property lawyers are expected to come into force on 1 October. The new, wide-ranging duties of letting agents to publicise fees under sections 83 to 88, however, arrived on 27 May 2015.

Rights to light

Following on from the landmark decision last year in the case of Coventry v Lawrence [2014] UKSC 13 in the Supreme Court, the courts have now issued further guidance on the circumstances in which damages may be awarded in lieu of and in addition to injunctive relief. The damages primarily relate to interference with rights of light, trespass, and harassment, and have been the subject to Scott v Aimiuwu (18 February 2015) and Raymond v Young [2015] EWCA Civ 456 so far this year.

Developers will take comfort from the recent decision of Recorder Edward Cole in the Central London County Court in Scott. The case is the first known decision on rights of light claims since Coventry v Lawrence. In the dispute between neighbours, Mr and Mrs Aimiuwu built a substantial extension to their home in Potters Bar in Hertfordshire, which in turn interfered with the light to four windows in the flank wall of Mr and Mrs Scott’s house next door.

The Scotts accordingly sought an injunction at trial requiring the extension to be cut back by some 92 metres. The judge, however, refused the injunction and instead awarded £31,499 damages to the Scotts. Recorder Cole’s reasoning was that an injunction requiring demolition works would be oppressive and punitive, and that an interim injunction had not been sought at an early stage to prevent the works, which had in any case been granted planning permission, from proceeding.

Moreover, the interference with light under question was to secondary accommodation and could be adequately compensated for in damages. Indeed, the defendants had taken expert advice before commencing the works, which indicated that the interference was not material and proceeded, albeit misguidedly, on the basis of
that advice.

Nuisance and harassment

The case of Raymond v Young involved what
was described as a nearly 40-year campaign of truculence and belligerence born out of Mr Young’s resentment over the acquisition and use of the Young’s former family farm as a weekend home
by the Raymond family.

The Supreme Court ultimately upheld the decision of the trial judge: the defendants’ conduct could not be described as transitory and the injunction granted would not provide adequate satisfaction to the claimants. The court further stated that an injunction could not act as a guarantee to any potential purchaser that they would not be subjected to the same treatment.

The judge awarded substantial damages to the claimants, including damages for distress and inconvenience caused by the defendants’ actions, reflecting the residual diminution in the value of the property, which was calculated on the basis that the threat of a nuisance to future purchasers would continue under new ownership. In addition to these damages, he also awarded a permanent injunction against the defendants.

Conveyancing disputes

Two recent cases that made their way to the courts provide useful guidance to practitioners involved in conveyancing transactions.

The case of Zeckler v Kylun Ltd [2015] EWHC 1386(QB), while not creating any new law, provides us with a useful reminder that before registering a pending land action, it is necessary to consider fully what the claim in the proceedings being protected is actually about. In this case, the claim related to an introduction fee in respect of an aborted development deal – it was in fact a money claim which did not constitute a pending land action. The High Court found that the solicitor should not have made the certification in the unilateral notice and that the notice should therefore be cancelled.

The case of Kandola v Mirza Solicitors [2015] EWHC 460 involved advice given by a solicitor in relation to the risks of releasing an unusually large deposit paid on exchange to the vendor rather than its being held by his solicitor as stakeholder. The case provides a useful summary of the extent of a solicitor’s duty to explain the risks involved in a transaction to the client. Judge Cooke concluded that the duty should take account of the client’s experience in such matters. A solicitor will have fulfilled their duty if they give an explanation in terms that the client reasonably appears to be able to understand, and to have understood, even if the client later alleges that they did not understand what was said.

Land Registry results

Looking forward to later this summer, the Land Registry has announced that it is introducing the new, long-awaited eDespatch service online from mid-July. In the new service, the results of nearly all applications for registering or changing land, whether submitted digitally or on paper, will sent to business customers electronically through their portal accounts. SJ

Belinda Walkinshaw is a partner at SA Law

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