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Osborne Clarke

Osborne Clarke

In a question of construction the court will give precedence to the strict meaning of the contract. Ed Socha and Sarah Mitchell explain

The recent case of Dooba Developments Ltd v McLagan Investments Ltd [2016] has highlighted that, provided the meaning of words in a contract are clear and unambiguous, common sense and the intention of the parties are essentially irrelevant. The use of inconsistent terms and the incorrect use of words may result in the court interpreting a contract differently to how the parties intended.

Ed Socha and Matthew Prendergast set out valuable lessons from key cases in 2016

With one eye on the future, the property litigation team at Osborne Clarke summarise some of the key property decisions and lessons from 2016.

Ed Socha considers the issues that arise when reversions are split for both landlords and tenants

There can be very good commercial reasons why a landlord might want to sell part of their reversion or otherwise split the freehold title. However, where a split reversion is created, this has the potential to cause real practical difficulties for landlords and tenants alike.

Rebecca Francis reviews whether the new Deregulation Act is cause for concern to landlords

In recent years, residential landlords have found themselves operating against a landscape of increasing regulatory burden and complexity. The Housing Act 2004 (HA 2004) (as amended) introduced the requirement to protect deposits on assured shorthold tenancies (ASTs) in a tenancy deposit scheme (TDS). Since then, tenants have been looking to even minor, technical non-compliance as a reason to resist section 21 notices. Recent cases have introduced uncertainties and risks for landlords that are unlikely to have been intended by the HA 2004.

Alexandra Foxon and Gary Lawrenson summarise their highlights of 2014 focusing on commercial landlord and tenant cases

As we begin the new year, it is a good time to reflect on decisions that grabbed the headlines in the real estate world in 2014.

Elizabeth Sturgess and David Shakesby consider the implications of listing land or buildings as assets of community value

The Localism Act 2011 was launched by the coalition government with clear aims to achieve a significant shift in power away from central government towards local authorities and local people. Many of the changes are well known, such as the abolition of regional strategies. However, one area that has only more recently started to come into the public arena is that of the obligation on every local authority to maintain a list of land or buildings of community value and the opportunities afforded to local groups to nominate land to be added to the list.

David Shakesby reviews a Supreme Court ruling providing welcome clarification for landowners and developers on rectification of the registers

On 5 February 2014, the Supreme Court handed down judgment in two appeals from decisions of the Court of Appeal in the cases of Adamson v Paddico (267) Ltd [2012] and Taylor v Betterment Properties (Weymouth) Ltd [2012].

Catherine Wolfenden investigates the implementation of the draft EU directives

Three new draft Directives on the procurement of public contracts are awaiting a final vote in Europe. The current timetable is that they will be formally approved in December 2013, with member states given two years to transpose them into national law. The UK Cabinet Office, however, has more ambitious plans. There is political drive to have the Directives in force in England and Wales via new regulations by summer 2014.

Although the recent decision in Siemens Hearing appears to provide comfort to tenants whose break notices do not comply with the lease terms, Vanessa Babington argues that caution is still required

If a tenant is facing landlord objections to its break notice then the decision in Siemens Hearing Instruments Ltd v Friends Life Ltd [2013] is one to turn to. The judgment provides a very concise and thorough summary of what options are available to tenants whose break notice is non-compliant. Perhaps, more importantly, it provides a valuable guide as to whether the assistance of the court (bringing with it a hefty price tag) is a viable or attractive option.

Does a ‘landlord’ include a ‘future landlord’ under the consultation requirements in s20 of the Landlord and Tenant Act 1985? Sue Thompson considers a recent case bringing welcome clarity

In a groundbreaking decision the High Court has confirmed that the service charge consultation requirements under s20 of the Landlord and Tenant Act 1985 do not apply to long term agreements if they are entered into before a building is constructed or let.

A successful challenge to the Environment Agency’s flood map zones has created huge opportunities for developers. Cameron Whitehead explains

For developers, land is king. The availability of viable development land is by its very nature limited, and in recent years developers have had to start looking a little harder and have become more creative in finding ideal sites for development. However, thanks to the recent decision by the Court of Appeal to uphold an earlier Queen’s Bench Division decision in the case of the R (on the application of Manchester Ship Canal Co Ltd and Peel Holdings (Land & Property) Ltd) v Environment Agency [2012] we may see swathes of land surrounding the multitude of canals in England and Wales suddenly become viable development land due to a change in flood risk designations. Additionally, this decision reinforces the recent Supreme Court case of Tesco Stores Ltd v Dundee City Council [2012] and may lead to a considerable increase in challenges to the decisions of public bodies by developers who are desperate to capitalise on prime development sites and are encouraged by the courts’ willingness to overturn the decisions of public bodies.

Leona Briggs and Gary Lawrenson provide a snapshot of recent developments in case law and legislation

Two cases have been the subject of particular interest in the commercial landlord and tenant sphere.

Ben Holt reviews the impact of the Bribery Act two years on

It has now been almost two years since the Bribery Act 2010 came into force. While the Act must clearly be taken very seriously, its application in certain scenarios appears to have sparked some misunderstanding and overreaction. It is a good time to review the key features of the Act and to consider the confusion around landlord’s incentives, corporate hospitality and the inclusion of overly onerous anti-corruption provisions in standard form contracts.

Donal Kelly analyses the Law Commission’s recent report on a revised Electronic Communications Code

Following the Law Commission’s report (that was published on 27 February 2013), which made recommendations for revisions to the Electronic Communications Code, the government is now tasked with drafting a new code from scratch. This first of seven key recommendations made by the Law Commission will be music to the ears of landowners, site providers and operators alike. While many interested parties made vastly different submissions to the Commission during the consultation stages, it was almost universally agreed that the existing Code was so overly complicated and badly drafted as to be beyond rescue.

Sue Thompson assesses the Supreme Court decision in Daejan

On 6 March 2013, The Supreme Court handed down its eagerly awaited judgment in Daejan Investments Ltd v Benson [2013]. By a majority decision (3:2) the court overturned the earlier decisions of the lower court and tribunals and granted the landlord dispensation from the statutory consultation requirements imposed by s20 of the Landlord and Tenant Act 1985, upon terms.

John Baird and Anna Harlow examine a case demonstrating the limits of localism

Since the introduction of the Localism Act 2011 and the NPPF (the framework), there has been a considerable ‘disconnect’ between what ministers have told the public and local authorities that localism is supposed to mean, and the actual effect of the amendments to planning legislation. Tewkesbury Borough Council v SSCLG [2013] is therefore a welcome decision helping to clarify what localism and the framework really mean, and how, in reality, very little has changed.

Catherine Wolfenden and Ashley Morgan consider the treatment of abnormally low tenders in public procurement

In a climate of ever-tightening budgets for public authorities, when a bidder comes along offering a price well below that of its nearest rivals, this must surely be welcomed? Not necessarily. An authority that bites the hand off the keenly priced bidder without properly considering and investigating that bid could well find itself regretting that decision.

Daniel Cuthbert discusses the vexed issue of apportionment of rent following the exercise of a break clause

Recent case law suggests that tenants are having significant problems properly exercising break clauses in their leases. One consequence of exercising a break clause that has caused problems is the requirement to pay a full quarter of rent, despite the fact that the lease terminates part way through the quarter if the break is successfully exercised. Three recent cases, Canonical UK Ltd v TST Millbank LLC [2012], PCE Investors Ltd v Cancer Research UK [2012] and Quirkco Investments Ltd v Aspray Transport Ltd [2011], have highlighted this point.

The requirements of flat management companies are evolving. Matt Ashley assesses their suitability for managing modern schemes

The traditional flat management company that manages a block of flats is becoming a rare beast. Once upon a time, a block of flats could be managed by a management company that was resident-controlled. Once a year the management company had to renew the buildings insurance, have the common parts inspected for fire safety purposes, and submit an annual return to Companies House.

Catherine Wolfenden and Jorren Knibbe assess the relationship between confidentiality and the procurement process

Tendering for public sector contracts involves handing over confidential or business sensitive information to a public body. Suppliers are often concerned that competitors do not get access to such information. In turn, public bodies have various obligations to provide information to the public.

Jane Rogers reviews recent case law relating to relevance of previous expert determinations

Valuers and lawyers alike, engaged in the business of establishing the open-market rental value of a property, will be familiar with the so-called hierarchy of evidence and the weight attributable to the different categories of comparable evidence used in the course of a rent review under a lease or a rent determination under s34 of the Landlord and Tenant Act 1954.

Catherine Wolfenden and Jorren Knibbe look at the applicability of procurement rules to joint ventures with public authorities

Do the procurement rules apply? A question that should be easy to answer, but often isn’t as the contractual relationships between the public, private and third sectors evolves. Whether a simple contract award or complex PPP/PFI, the public procurement rules (EC Directive 2004/18/EC (the Directive) and the Public Contracts Regulations 2006 (as amended, England Wales and Northern Ireland) (PCR)) will have to be followed at some point. Government policy is pushing for efficiency and savings using shared services, collaborative procurement and mutualism. This is driving the use of novel joint ventures, public/public contracts, mutual structures and early market engagement. This article looks at guidance from case law and the proposed legislative changes on the application of the procurement rules in this area.

Jane Rogers looks at the latest litigation involving beer ties

In November 2006 I wrote an article for this journal that was published with the title ‘Crehan – the end of the beer tie saga’ (PLJ180, p19). This marked the end of a marathon court case that had been to the European Court and back and ended with the judgment of the Supreme Court (or the House of Lords as it then was). However it was not, in fact, the end of the saga as subsequent litigation has demonstrated.

In considering Berrisford v Mexfield, the Supreme Court has expressed its view on the current, unsatisfactory, legal position where a lease or tenancy agreement has been created for an uncertain duration. Carl Roche investigates

On 9 November the Supreme Court handed down judgment in Berrisford v Mexfield Housing Co-operative Ltd [2011], a case primarily concerning a tenancy agreement that incorporated an uncertain maximum term.

With the growing popularity of pre-packs, Nigel Boobier and Daniel Cuthbert assess the issues surrounding them

It’s been a busy year for pre-packs. The announcement on 31 March from Ed Davey, minister for Business Innovation and Skills (BIS), that the BIS is looking at the detail of draft legislation to introduce a new three-day advance notice rule for administrators, sparked much discussion. This is where an administrator is selling a significant proportion of a business to a connected party with no open marketing of the assets.

Christopher Kerr-Smiley sets out the powers and duties of bare trustees

All trusts can be categorised as either special or simple. Simple trusts are commonly referred to as bare trusts, and sometimes as passive trusts. A special trust, perhaps better described as a substantive trust, is the type of trust that most private client practitioners will deal with on a regular basis. There is some form of trust instrument, usually a deed, which imposes active obligations on the trustees to deal with trust property for the benefit of the beneficiaries described in the instrument. A special trust can be oral (except in the case of a trust of land), but this is unusual.

Catherine Wolfenden examines some areas of forthcoming reform of the procurement regulations

The Public Contracts Regulations 2006 (Regulations) are changing. The entry into force of the Bribery Act 2010 on 1 July 2011, coupled with European case law on limitation periods, mean significant amendments to the Regulations are expected later this year. The Utilities Contracts Regulations 2006 will also be amended.

Daniel Cuthbert and Carl Roche assess the current state of play with regards to break clauses that are dependent on vacant possession

Over the last five to ten years we have seen a marked increase in break clauses that are conditional on vacant possession. The condition for vacant possession has, in some cases, replaced a requirement to comply or materially comply with covenants. This has reduced the difficulty previously faced by tenants seeking to gain an early exit from their leases.

Gary Lawrenson considers the impact of Jones v Kaney

In Jones v Kaney [2011] the Supreme Court ruled on expert immunity in civil litigation. Until this decision, experts were given immunity from suit to encourage them to give full and truthful evidence without fear of retribution.

Andrea Tithecott examines recent cases where the Court of Appeal has considered the duties of occupiers where contractors have been appointed to carry out work

Two decisions published in February 2011, Kmiecic v Isaacs [2010] and Ceva Logistics Ltd v Lynch & anor [2011], both concerned civil claims for injury damages where the court was asked to consider whether the occupier, rather than the contractor, was in control of works.