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Property Law Journal: 21 February 2011
Lewis Silkin

The Court of Appeal decision in Daejan confirms that the courts will strictly apply the consultation requirements in s20 of the Landlord and Tenant Act 1985. Mario Betts assesses the implications

On 28 January 2011, the Court of Appeal handed down its eagerly awaited judgment in Daejan Investments Ltd v Benson & ors [2011]. The court robustly dismissed the landlord’s appeal against two decisions of the Leasehold Valuation Tribunal (LVT) and the Upper Tribunal, and in so doing refused its application to dispense with the consultation requirements under s20 of the Landlord and Tenant Act 1985. Critically, the court also confirmed that the financial consequences for a landlord are irrelevant considerations to the grant or refusal of dispensation.

John Condliffe and Matthew D’Arcy discuss some important points arising from the increased use of index-based and fixed-uplift rent review provisions

An emerging trend in commercial lease negotiations is the use of alternative rent review provisions to open market reviews. New leases are being settled with fixed-rent increments, or index-linked reviews, which are more in line with practice in other European countries (indeed the Republic of Ireland recently banned upward-only rent reviews in new leases). These deals are designed to give certainty by avoiding the vagaries of open market rent. Understandably, parties are often keen to protect themselves against unexpected fluctuations when assessing rental income stream or outgoings. Within the context of this approach, there are some important issues to consider when agreeing both the heads of terms and the detailed terms of the lease.

Richard Bartle reminds us of the common law assessment of damages and the operation of s18(1) of the Landlord and Tenant Act 1927, with reference to recent case law

Section 18(1) of the Landlord and Tenant Act 1927 restricts the quantum of damages that a landlord can recover for breach of a tenant’s repairing covenant. The recent case of PGF II SA v Royal & Sun Alliance Insurance Plc [2010] has provided some clarity as to:

Boyes Turner

John Starr reviews instances where an adjudicator’s decision may not be binding, in light of recent case law

Popular wisdom would have it that once an adjudicator has decided something it stays decided unless, or until, a court or an arbitrator says different. Mostly that is true, but there could still be circumstances in which either another adjudicator comes along and has a different view, or where the first adjudicator himself has a change of heart. The recent case of Redwing Construction Ltd v Wishart [2010] dealt with two situations where this might occur: one involving another adjudicator, and the other involving an error in the adjudicator’s decision.

Now that the Office of Fair Trading has published its draft guidance, Bill Chandler looks at how competition law will be applied to property transactions when the repeal of the Land Agreements Exclusion Order takes effect in April 2011

From 6 April 2011 all property transactions will be subject to the full rigour of competition law for the first time. Any agreements or restrictions contained in property documents will be affected, but perhaps the most obvious candidates are restrictive covenants limiting the development or use of property, together with restrictions in leases such as tenants’ covenants on the use of the property and exclusivity covenants given by landlords.

Claire James and Keith Shaw report on a recent decision confirming important procedural issues in claims of adverse possession

Acquiring land by adverse possession is the process by which a person who is not the legal owner of the land can become the legal owner by possessing the land for a specified period of time. While the law relating to adverse possession was considered in some detail in a recent joint consultation paper by the Law Commission and the Land Registry, the elements to a claim for adverse possession remain the same regardless of whether the claim is in respect of registered or unregistered land. As will be shown below, the difference between registered and unregistered land can, however, be seen to explain the decision of the High Court in the recent case of Diep v Land Registry [2010].

Forsters LLP

Zahra Kanani considers the results of a recent consultation over disposal of land by charity trustees

Charity trustees can generally rely on the power contained in the Trusts of Land and Appointment of Trustees Act 1996 (known as the ‘statutory power’) to dispose of a charity’s land. The term ‘disposition’ is wide and includes, inter alia, a sale, transfer or conveyance of freehold land and the grant of a lease for more than seven years. Use of the statutory power is dependent on the trustees: