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Property Law Journal: February 2014
John Starr

John Starr reviews the problems that can be encountered on termination, as well as a detailed look at repudiation in the context of recent case law

There are various means of terminating a construction contract; it does not have to be a matter of an innocent party accepting a repudiation of contract by the other party (see 'Repudiation of contract – the search for a cure' below). There can be express terms in the contract allowing for termination in certain circumstances, such that the entitlement to terminate can simply be a contractual mechanism for dealing with certain eventualities, rather than a remedy for breach of contract.

Hugh James

How should damages be assessed where there is no loss to the claimant but the defendant has gained a benefit that he has not had to pay for? Robert Phillips looks at a recent case

The starting point when assessing damages for a trespass is, as with any tort, to put the claimant back in the position he would have been in had there been no trespass. Similarly, where the court is awarding damages in lieu of an injunction under s2 of the Chancery Amendment Act 1858, the damages are normally compensatory.

Michael Gould considers the outcome of a Court of Appeal case concerning the benefit and scope of covenants

A recent decision of the Court of Appeal, Trustees of the Coventry School Foundation v Steven Whitehouse [2013], raises issues of acute practical concern to any practitioners called upon to advise developers. In particular with regard to determining who, if anyone, has the standing to enforce a covenant, and also the scope of one of the most common covenants, not to cause a nuisance or an annoyance.

John de Waal QC provides an overview to CRL and suggests that it may be time to abolish this liability

Chancel Repair Liability (CRL) is back in the news: ‘Homeowners face huge bills for repair to churches under ancient laws – regardless of their religion’ was a recent headline in the Daily Mail (30 December 2013). The article referred to letters apparently sent to 12,000 homeowners ‘informing them they face the threat of crippling bills to repair local churches under an ancient law which applies regardless of their religion’. One parish, St Cuthbert’s Church in Lytham, Lancashire has apparently entered notices against 5,725 properties.

Eversheds

James Batham and Thomas Grant QC discuss the implications of Lord Neuberger’s obiter comments in K/S Victoria Street, and the likelihood of such comments being confirmed in the future

The much-publicised K/S Victoria Street v House of Fraser case was decided in 2011, approving the Good Harvest decision that any obligation imposed on the tenant’s guarantor to guarantee the obligations of an immediate assignee will be void. However, yet to come before the courts for determination are the obiter comments made by Lord Neuberger in K/S Victoria Street that, potentially, any assignment by a tenant to its guarantor will be void. The implications of such a conclusion for the property market are huge.

Andrew Williams examines a recent Court of Appeal case concerning positive freehold covenants and the recovery of maintenance costs

During the Autumn of 2013 the Court of Appeal in Goodman & ors v Elwood [2013] took the opportunity to grapple with some thorny issues relating to positive freehold covenants. In doing so, it has provided us with an opportunity to consider some common questions that arise in this context. And perhaps most important, it has answered the question: must the burden of a positive covenant be registered against the title of the relevant property?

Emma Humphreys discusses two recent cases where the Upper Tribunal took a flexible approach to the modification of a restrictive covenant

Two recent decisions of the Upper Tribunal offer interesting illustrations of its approach towards applications for the discharge or modification of restrictive covenants. In The Trustees of the Green Masjid and Madrasah [2013], the applicants sought to persuade the tribunal to allow modification of the covenant despite their sustained and wilful breaches of the restriction. In Re Tate [2013], the tribunal considered whether a neighbour was entitled to rely upon the ‘practical benefit’ arising from the covenant of demanding a monetary payment in return for allowing the proposed development of the applicants’ site to proceed.