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Property Law Journal: 21 November 2011
Nabarro LLP

Nathan Rees assesses the issues to consider when negotiating an option agreement, and the possible alternatives

An option to purchase (that is, a call option) is an incredibly useful tool for a developer who is seeking to assemble ownership of a site for a development scheme. The land that comprises the intended development site may be owned by a number of different parties, and the use of options to acquire these interests is capable of providing the developer with the required combination of certainty, coupled with flexibility.

Keith Conway looks at the new edition of the Protocol that is due to be adopted as part of the CPR in early 2012

The weaker prospects for commercial property continue to cause significant problems for both landlords and tenants at the end of leases, that contain significant repairing and reinstatement obligations. Landlords want the property returned to a good condition, or at least the cash alternative. Tenants want to minimise their expenditure and obtain early certainty. Both would prefer to avoid costly litigation.

Boyes Turner

John Starr reviews a recent case involving the reasonableness of the fees charged

The Construction Act (that is to say the Housing Grants, Construction and Regeneration Act 1996, as recently amended by the Local Democracy, Economic Development and Construction Act 2009) gives the parties to a construction contract the right to refer their disputes to a swift form of dispute resolution called adjudication, which means that a decision is reached within, typically, 28 days by someone calling themselves an adjudicator. An adjudicator can be anyone chosen by the parties to the contract, or, if they do not decide (and mostly they do not), someone nominated by a body such as the Royal Institute of Chartered Surveyors (RICS) or the Royal Institute of British Architects (RIBA). If the parties do not agree how the adjudication should be conducted, the provisions of the Scheme for Construction Contracts (England and Wales) Regulations apply. In fact, the standard form construction contracts published by the JCT just say that the Scheme applies anyway.

In the first of a new monthly column by King & Wood Mallesons SJ Berwin LLP , Joann Fernandes provides an overview of the Localism Bill and the National Planning Policy Framework

The Localism Bill was published and introduced to the House of Commons on 13 December 2010. It includes provisions relating to local government, EU financial sanctions, non-domestic rates, community empowerment, planning, housing and London governance.

Chris Devlin assesses the outcome of some key cases concerning the interaction of planning conditions and the lawful commencement of development

Planning permissions must be implemented within strict time limits, unless expressly agreed otherwise with the Local Planning Authority. One symptom of these difficult economic times is that certain planning permissions may not be capable of being fully built out until the economy improves. It seems sensible, therefore, to safeguard a planning permission by implementing that permission so that, in time, the full development can be constructed.

Forsters LLP

Natasha Rees examines a case that considers the status of a tenant where the lease is assigned in parts without the knowledge of the landlord

On 2 November 2011, the Court of Appeal gave judgment in Smith & anor v Jafton Properties Ltd [2011]. The judgment relates to a legal issue arising out of a collective enfranchisement claim under the Leasehold Reform Housing & Urban Development Act 1993. Although it is primarily concerned with qualification under the 1993 Act it considers in some detail the status of a tenant where a lease is assigned in part and contains a useful analysis of the common law position relating to privity of estate.

Mark Pawlowski asks whether a spouse or unmarried partner can acquire a beneficial share in property by relying on the owner’s informal declaration of trust

As far as I am aware there have been only two reported English cases where a claimant has argued for a beneficial share in property based on an oral declaration of trust: Rowe v Prance [2000] and Paul v Constance [1977]. This is, perhaps, not surprising in view of the fact that such a claim is more likely to prove successful in the context of a declaration of trust of personalty because of the evidentiary requirements imposed by s53(1)(b) of the Law of Property Act 1925 in relation to declarations of trust of land.