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Property Law Journal: 2 April 2012

Graeme Robertson reviews the implications of the Land Registration Act 2002 and its implications on squatters and landowners

Adverse possession is an area of property law that most landowners would hope to have little or no dealing with, if they are aware of it at all. At its most fundamental level, it is counter-intuitive, particularly in England and Wales where private property-owning rights have always been kept as nigh on sacrosanct. The adverse possession regime challenges this idea: it allows a lawful owner of property to be deprived of his title by an interloping third party who has given no value for it. This challenge is arguably inconsistent with the modern concept of owner-centric property law, which is now enshrined in the Human Rights Act 1998 (although it should be noted that the current adverse possession regimes have been held by the ECHR to be convention-compliant).

As predicted, the Chancellor targeted stamp duty land tax avoidance, but also created capital gains tax and inheritance tax worries. Elaine Dobson investigates

The Budget has effectively brought to an end the loophole that saw predominantly overseas companies acquiring UK residential real estate. Such companies could then be used to avoid the payment of stamp duty land tax (SDLT) by a disposal of its shares rather than the property itself. A UK company share disposal would be liable to the payment of Stamp Duty at 0.5% on the share sale. In future, those who chose to buy residential property through ‘non-natural persons’ (not defined but will not be limited to overseas companies) will have to pay a stamp duty land tax of 15%. The Chancellor has, in effect, recognised that it is the subsequent disposal that creates a loss to HMRC and has decided to take double the tax upfront. It should be remembered that SDLT costs HMRC next to nothing to collect and is therefore one of the most efficient taxes for HMRC in terms of actual return less cost of collection.

Hempsons

James Atkins provides a review of the current law

In its report of 7 June 2011 entitled ‘Making Land Work: Easements, Covenants and Profits à Prendre’ (Law Com. Report No. 327), the Law Commission recommended that the current law governing the acquisition of easements by prescription requires urgent attention. There is no doubt that the body of law is complex and, in 2011, three reported cases, including the Court of Appeal decision in London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011], reviewed the underlying principles and their application.

The new remedy of CRAR still needs some work before becoming a reality. Ed John outlines the key points of the consultation paper ‘Transforming Bailiff Action’

Anecdotally, use of distress (particularly in relation to retailers) in the faltering commercial letting market is on the increase. The government’s decision to revisit the drawn-out saga of replacing distress with the new statutory remedy of CRAR under Part 3 of the Tribunals, Courts and Enforcement Act 2007 is, therefore, very timely. Concerns have been raised by landlords that CRAR (particularly the requirement to give the debtor notice prior to taking control of goods) would impede the effective recovery of rent arrears. This is one of several areas on which views are now sought in the latest consultation paper, ‘Transforming Bailiff Action’, published on 17 February 2012.

Dentons

Stephen Ashworth addresses some fundamental concerns relating to affordable housing, highlighted by a recent decision in Amber Valley

Affordable housing is a bellwether. If the development market is vibrant and the planning system is efficient then significant levels of affordable housing can be provided. In pre-Lehman days the planning system delivered well over 50% of all affordable homes. In 2009/2010 it was 56%, down from 62% the previous year, around 30,000 new homes, with an annual value of over £2bn. In contrast, in an anaemic market, and with a planning system in flux, affordable housing provision can drop dramatically. In the second quarter of 2011 less than 100 affordable homes were provided across the country. Strength and certainty contrast with weakness and chaos, each reinforcing the other.

Nigel Howorth and Michael Coxall discuss the implications of CIL on real estate transactions

After lengthy preparation and many changes of tack by successive governments, the Community Infrastructure Levy (or CIL) has finally come into effect in the first local authority area. Newark & Sherwood DC’s CIL came into force on 1 December 2011 with other authorities having since implemented, or being near to implementing, CIL in their areas. Developers will gradually need to become familiar with CIL as a major component of the development process. It is also increasingly likely that developers and investors will start to come across CIL in their real estate transactions and they need to be aware of the implications.