Leasehold assortment – Nearly Legal
‘Some quick notes on leasehold related cases.’
Nearly Legal, 12th December 2021
Source: nearlylegal.co.uk
Category: covenants
Waiver and determining breach of lease – Nearly Legal
‘Bedford v Paragon Asra Housing Ltd (LANDLORD AND TENANT – BREACH OF COVENANT – shared ownership lease) (2021) UKUT 266. An interesting Upper Tribunal appeal decision on whether the Tribunal can proceed to make a determination of breach of lease under section 168 Commonhold and Leasehold Reform Act 2002 where there has been a waiver of the breach by the applicant landlord.’
Nearly Legal, 31st October 2021
Source: nearlylegal.co.uk
Damages for breach of lease? Possibly not… – Nearly Legal
‘This is a county court case, so not a binding precedent, but it is a) fascinating (if hardly uncommon in London as a situation), and b) a judgment by HHJ Luba QC, so carries the weight of a highly experienced housing/landlord and tenant judge.’
Nearly Legal, 1st August 2021
Source: nearlylegal.co.uk
If in doubt, don’t assume it’s a solicitor’s undertaking – Hailsham Chambers
‘In its 23 July 2021 judgment, the Supreme Court tackled the severe limitations of solicitors’ undertakings in the modern era in Harcus Sinclair LLP v Your Lawyers Ltd [2021] UKSC 32. All practitioners will need to know about this vitally important unanimous judgment.’
Hailsham Chambers, 26th July 2021
Source: www.hailshamchambers.com
Doors, fixtures and demises – Nearly Legal
‘Marlborough Knightsbridge Management Ltd v Fivaz (2021) EWCA Civ 989. In which the Court of Appeal grapple with whether a front entrance door to a leasehold flat is a “landlord’s fixture” or something else. This was the landlord’s second appeal from the Upper Tribunal decision we noted here, where the UT had found that the door was part of the demise under the lease, not a landlord’s fixture. The overall issue was that the leaseholder, Mr Fivaz, had replaced the front door to his flats. The landlord contended that this was a breach of lease under a covenant.’
Nearly Legal, 8th July 2021
Source: nearlylegal.co.uk
A Restrictive Interpretation? – Tanfield Chambers
‘Andrew Butler QC assesses the recent Court of Appeal decision in Quantum Actuarial LLP v Quantum Advisory Ltd [2021] EWCA Civ 227, in which he appeared for the Appellant. The case concerned covenants in restraint of trade, arising in an unusual context.’
Tanfield Chambers, 2nd March 2021
Source: www.tanfieldchambers.co.uk
Using leasehold property for holiday lets – Becket Chambers
‘As we start to consider the possibility of lockdown lifting and our thoughts recklessly stray to the idea of getting away from it all, I thought I would dampen the exuberance by reminding us all of the perils of using leasehold property for holiday lets (Airbnb or otherwise).’
Becket Chambers, 24th February 2021
Source: becket-chambers.co.uk
Lancashire Hot Pot – waiver of forfeiture and landlord knowledge of breach – Nearly Legal
‘On 22nd January the Court of Appeal handed down its judgment in the case of Faiz v Burnley Borough Council (2021) EWCA Civ 55. Judgment dismissing the appeal was given by Lewison LJ; with whom Arnold and Asplin LLJs agreed. The case came on appeal from the decision of HHJ Halliwell (2020) EWHC 407 (Ch).’
Nearly Legal, 26th January 2021
Source: nearlylegal.co.uk
Triplerose Limited v Beattie and Beattie [2020] UKUT 180 (LC) – Tanfield Chambers
‘A lease that contains a covenant against use other than as a private dwellinghouse is breached where the tenant opts to let the property out on short term lets through sites such as Airbnb and Booking.com. However, where the tenant still makes regular use of the property as a residence in and around those bookings, the tenant will not be in breach of a separate covenant not to carry on a business from the property (as distinct from a covenant not to use the property for a business).’
Tanfield Chambers, 30th June 2020
Source: www.tanfieldchambers.co.uk
Jafari v Tareem Limited [2019] EWHC 3119 (Ch) – Tanfield Chambers
‘The High Court examined the relevance of an offer of compensation to the question of whether a landlord was in breach of the covenant for quiet enjoyment.’
Tanfield Chambers, 30th June 2020
Source: www.tanfieldchambers.co.uk
Conflicting Covenants Revisiting Duval v 11-13 Randolph Crescent – St Ives Chambers
‘What happens when a landlord:
a. On the one hand, gives Tenant A a licence to do something which would otherwise be a breach of Tenant A’s lease, but;
b. On the other hand, is under an obligation to Tenant B to enforce the covenants in Tenant 1’s lease?’
St Ives Chambers, 6th July 2020
Source: www.stiveschambers.co.uk
Landlord’s knowledge of breach: waiver of forfeiture Faiz v Burnley BC [2020] EWCA 407 (Ch); 2 WLUK 318 (Ch D) – St Ives Chambers
‘The High Court in Faiz considered the interrelationship between a landlord’s knowledge and the date of accrual of a tenant’s liability and their effect on waiver of forfeiture.’
St Ives Chambers, June 2020
Source: www.stiveschambers.co.uk
Use as a Private Dwelling House Does Not Include Shortterm Holiday Lets – St Ives Chambers
‘Many property owners are taking advantage of new technology to advertise short term stays at their properties on various platforms. Two of the most common are Airbnb and Booking.com. Changes to the tax relief available on buy to let mortgages has also caused a move towards Furnished Holiday Lettings.’
St Ives Chambers, June 2020
Source: www.stiveschambers.co.uk
Promises, promises: what is a landlord to do? Looking at the Supreme Court ruling in Duval v 11-13 Randolph Crescent – Becket Chambers
‘Is a landlord of a block of flats entitled to grant a licence to a lessee to carry out work which would breach an absolute covenant contained in a lease of their flat, where the leases of other flats in the same building require them to enforce covenants at the request of a lessee of one of those other flats, without being in breach of the latter covenant?’
Becket Chambers, 11th June 2020
Source: becket-chambers.co.uk
Landlord’s certification conclusive and binding on issues of law? – Hardwicke Chambers
‘This appeal was against the Deputy Master’s refusal in [2019] EWHC 3414 (Ch) to dismiss Blacks, the tenant’s counterclaim or to grant a summary money judgement in relation to S&H, the landlord’s claim for rent for over £400,000. It raised complicated issues concerning the construction and inter-relation between a set-off clause and a certification provision.’
Hardwicke Chambers, 10th June 2020
Source: hardwicke.co.uk
Not not Nemcova – Nearly Legal
‘Another Upper Tribunal decision to add to the now large pile of cases on airbnb/short let use and breach of lease. In this case, the FTT had found the short let use not to be in breach of lease (for cunning reasons I’ll come back to) and the head lessor had appealed to the Upper Tribunal. The decision upholds the Nemcova line on “private residence” use, but also has a finding of interest on “business use”.’
Nearly Legal, 6th June 2020
Source: nearlylegal.co.uk
The consequences of breaching absolute covenants – Tanfield Chambers
‘Residential leases can last a long time. A lot can change in 99 years or 999 years. What the landlord deemed an absolute “no-no” in 1965 might not seem such a bad idea now. However, following the Supreme Court’s decision in Duval v 11-13 Randolph Crescent Ltd [2020] UKSC 18; [2020] PLSCS 84 if the landlord has given other leaseholders in the block the benefit of a mutual enforceability covenant, the landlord will put itself in breach of covenant if it gives a tenant permission to do something which would breach an absolute covenant. The consequences of this decision are potentially far reaching.’
Tanfield Chambers, 13th May 2020
Source: www.tanfieldchambers.co.uk
Distinguishing a Crock from a Gater – Hardwicke Chambers
‘[Landlord & Tenant Act 1985] s.27A(6) provides that:
An agreement by the tenant of a dwelling (other than a post-dispute arbitration agreement) is void in so far as it purports to provide for a determination—(a) in a particular manner, or (b) on particular evidence,
of any question which may be the subject of an application under subsection (1) …’
Hardwicke Chambers, 28th May 2020
Source: hardwicke.co.uk
Every dog in the manger has its day. Sometimes two – Hardwicke Chambers
‘The Court of Appeal decision in Dr Julia Duval v 11 – 13 Randolph Crescent Ltd [2018] EWCA Civ 2298 was a wake-up call to landlords to be alive to their, often overlooked, obligations to enforce tenants’ covenants at the behest of other tenants. That decision has been confirmed by the Supreme Court: [2020] UKSC 18.’
Hardwicke Chambers, 12th May 2020
Source: hardwicke.co.uk
New judgment: Duval v 11-13 Randolph Crescent Ltd [2020 UKSC 18] – UKSC Blog
‘Two of the leases of 11-13 Randolph Crescent are held by the respondent, Dr Duval and a third lease Is held by Ms Martha Winfield. Each lease contains a covenant, clause 2.6, which prevents the lessee from making any alteration or improvement in, or addition to, the premises demised by the lease without the prior consent of the landlord. Each lease contains an absolute covenant, clause 2.7, which prevents the lessee from cutting into any roofs, walls, ceilings or service media. Clause 3.19 requires the landlord to enforce, at the request and cost of the lessee, certain covenants in the leases held by other lessees, including any covenant of a similar nature to clause 2.7. Mrs Winfield sought a licence from the landlord to carry out works to her flat which the landlord granted, subject to Mrs Winfield securing adequate insurance. Dr Duval then issued proceedings against the landlord seeking a declaration that the landlord did not possess the power to permit Mrs Winfield to act in breach of clause 2.7 of her lease. The landlord appealed to the Supreme Court.’
UKSC Blog, 6th May 2020
Source: ukscblog.com
