Roundup of property developments in 2016
Adam Rosenthal considers a cross section of the cases decided this year, including three significant Supreme Court judgments
As 2016 ends with the Supreme Court engulfed in a case of constitutional magnitude, it is comforting to property practitioners to note that during the course of this year no less than three Supreme Court judgments have been handed down in our field of practice. These decisions range from the extent of a prescriptive right to fish in the Wash to the application of the Human Rights Act 1998 to residential possession claims. The Court of Appeal has also heard a number of appeals of interest.
In McDonald v McDonald  UKSC 28, the Supreme Court finally put to bed the argument that a court hearing a possession claim by a private-sector owner was required to consider the proportionality of evicting the tenant. Although the court is a ‘public authority’ for the purposes of section 6 of the Human Rights Act, section 6 and article 8 of the European Convention on Human Rights do not require the court to consider the proportionality of making an order for possession.
In Lynn Shellfish Ltd v Loose  UKSC 14, the Supreme Court turned its attention to the tidal waters of Norfolk to consider the application of the rules for acquiring easements by prescription in the context of a private fishery. It was held that the extent of the private fishery had to be established by the historic user rather than attempting to construe a fictional grant.
In the field of prescriptive easements, the Court of Appeal held, in Winterburn v Bennett  EWCA Civ 482, that signs on land indicating that an activity (in this case, parking) is prohibited are sufficient to render a use in defiance of those signs ‘forceful’, such that a prescriptive right cannot be acquired.
In Re Black Ant Co Ltd  EWCA Civ 30, the Court of Appeal turned its attention to the law of mortgages and addressed (for the first time in decades) the rules for tacking further advances and the Land Registration Act 2002. In Mortgage Express v Lambert  EWCA Civ 555, the court examined the application of the overreaching provisions in section 2(1) of the Law of Property Act 1925 and how those rules applied to an equity to set aside a transaction at an undervalue, holding that the equity was overreached by a mortgage entered into by the registered proprietors.
Returning to residential tenants, the Supreme Court considered section 11 of the Landlord and Tenant Act 1985 in Edwards v Kumarasamy  UKSC 40, where a residential sub-tenant had tripped on a broken paving stone. The landlord, who was sued under section 11, held a long lease of the flat with a right of way over the common parts. It was held that the right of way was a sufficient ‘interest’ to engage the implied repairing obligations, but since the paved area was not within the landlord’s possession, the landlord of the flat could not be liable for any disrepair without notice of it, and, in any event, it was held that this pathway was not part of the ‘structure and exterior’ of the building.
In a similar vein, in Sternbaum v Dhesi  EWCA Civ 155, the Court of Appeal rejected the claim of a tenant who had fallen on a steep stairway with no railings. Although it was clearly a hazard, it was not in disrepair and therefore the landlord was not liable under section 4 of the Defective Premises Act 1972 for the tenant’s injuries.
The principles for quantifying an interest which arises by proprietary estoppel were considered and helpfully summarised by the Court of Appeal in Davies v Davies  EWCA Civ 463. The Supreme Court having refused permission to appeal, this was the culmination of a long-fought battle over a dairy farm in Wales.
Another (seemingly unrelated) family named Davies also found two of its members before the Court of Appeal arguing about whether one of them had acquired an interest in farmland by proprietary estoppel in Davies v Davies  EWCA Civ 1226, where the issue was the correctness of a judge’s finding that Mr Davies should have a charge over the farm owned by Mrs Davies (his mother) to reflect the value of his interest by proprietary estoppel.
A noteworthy decision of the Upper Tribunal (Property Chamber) in relation to leasehold enfranchisement is Trustees of the Sloane Stanley Estate v Mundy  UKUT 0223 (LC), in which the tribunal considered the correct approach in valuation cases to determining the relativity of freehold to leasehold values. The tribunal declined to adopt the ‘hedonic regression’ model advocated by the tenants in that case and laid down guidance for tribunals deciding issues of relativity in the future.
Also in the enfranchisement field, in Kateb v Howard de Walden Estates Ltd  EWCA Civ 1176, the Court of Appeal held that a freeholder, as the competent landlord, is able to agree the terms of a new lease, including the compensation payable to an intermediate landlord, under the Leasehold Reform, Housing and Urban Development Act 1993.
Outside the courts, in parliament there was some surprise when the Queen announced in May that her government intended to introduce a Law of Property Bill to give effect to the recommendations of the Law Commission on easements and covenants. The government has, understandably, become somewhat sidetracked with other issues, and it remains to be seen whether any parliamentary time will be made available for reforming property law, but this is potentially something for property lawyers to watch out for in 2017.
Adam Rosenthal is a barrister at Falcon Chambers