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Property Law Journal: 29 August 2011
Forsters LLP

Natasha Rees assesses the outcome of a case that highlights the intricacies of the notices required to recover service charges effectively

Recovery of residential service charges is a minefield for landlords generally, and particularly for unwary landlords who do not demand or give details of sums due by way of service charge within the time limits set by the Landlord and Tenant Act 1985. Section 20B of the 1985 Act essentially provides that a landlord has 18 months from when he incurs a service charge expense to:

Boyes Turner

John Starr reviews the courts’ stance on shopping around for an expert

Construction disputes invariably involve a number of third parties; professionals tasked in one way or another with helping to resolve the dispute. There are arbitrators, adjudicators, mediators and experts (to name but a few). Each has their own peculiarities – their own views or outlook on the world. You are not going to agree with everything they say, or even necessarily trust them to say what you want, but can you shop around? Say, for example, the expert you have appointed puts something in their report that you disagree with, or the adjudicator appointed by the nominating body named in the contract is someone you have come across before and disagreed with, or maybe crossed swords, with on another dispute. Can you put them to one side and appoint someone else?

Neil Warriner, Isaac Zailer and William Arrenberg explain why UK parented real estate groups and UK intermediary companies need to pay careful attention to the government’s proposals

The real estate sector may well be excused for thinking that the much-publicised controlled foreign company (CFC) proposals would not impact the sector in any material sense. This has certainly been the case to date with the current CFC rules, and may remain true going forward. However, the recently published CFC consultation document should make the real estate sector take note, as tucked away at the end of the consultation document is Annex A entitled ‘Property and Leased Tangible Assets’. This sets out (in disappointingly limited detail) the impact of the CFC proposals on the real estate industry.

Kate New looks at the outcome of some cases where the contracting parties wished to alter, avoid or reinterpret the terms of contracts that they entered into before the market collapse

Even in a strong economy there are reasons why contracting parties regret the bargain they have entered into and will strain to alter, avoid or reinterpret the terms. In an economic downturn, such as we have recently experienced, the pressure on lawyers to find a way out of contracts, or stop other parties from doing so, is greater than ever and so we have seen a flurry of cases on break clauses, performance of pre-conditions (eg reasonable endeavours) and such like.

Dr Keith Shaw analyses the Court of Appeal decision in Ibrend Estates, and what vacant possession really means in practice

Cases relating to break clauses are very topical at this time. For example, in MW Trustees Ltd & ors v Teluar Corporation [2011], the High Court held that the landlord was estopped from challenging a tenant’s defective break notice, given that the managing agents were held to have accepted the break notice on the landlord’s behalf. The case highlighted how tenants serving break notices should take care to observe the lease requirements in order to ensure valid notice has been served.

Mark Pawlowski considers the rights of a lender when faced with an unlawful tenant on the mortgaged premises

Most mortgages contain a prohibition on the borrower entering into tenancies of the mortgaged property without the prior approval of the lender. Indeed, if title to the property is registered, it is customary for the exclusion of the mortgagor’s powers of leasing (contained in s99 of the Law of Property Act 1925) to be noted on the register of the property. What then is the position of a tenant who has been granted an unauthorised tenancy of the premises in breach of the mortgage deed? Is he obliged to vacate if the landlord defaults on the mortgage and the lender seeks possession?

Sarah Youren outlines a new regime to protect wildlife and the natural environment, and the government’s latest measures designed to speed up the planning process

Natural England has launched an eight-week public consultation on a new enforcement regime to protect wildlife and the natural environment, including Sites of Special Scientific Interest (SSSI). The consultation period ends on 30 September 2011. The remit of Natural England is to conserve our wildlife, landscapes and seas, to restore our natural assets and to work with people so that they can enjoy all the benefits that the natural world offers. Natural England is responsible for enforcing the laws that protect wildlife and the natural environment to ensure that the natural environment is not damaged.