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Property Law Journal: July/August 2014
John Starr

John Starr provides an overview of two recent construction cases

Forsters LLP

Natasha Rees reviews an Upper Tribunal decision explaining what exactly tenants can include in a claim to collective enfranchisement in addition to the specified premises

It is often the case in collective enfranchisement claims that issues arise about what can be included within the claim. This is particularly the case with larger developments which include communal areas, car parking spaces and gardens. In a recent appeal known as Mark Cutter v Pry Ltd [2014], the Upper Tribunal have clarified what areas can be included in the claim and also whether the freeholder can vary the terms of the rights offered in lieu of purchase at the tribunal hearing.

Serle Court

Andrew Francis and Suzanne Rab reflect on the implications of an Indian competition law case on UK real estate development

India’s specialist competition appeal tribunal, the Compat, has upheld a fine of 6.3bn rupees (approximately €75m) that was imposed on a real estate developer by the Competition Commission of India (CCI). The issue of abuse of dominance in a real property context is relatively untested in the UK. But there are some straws in the wind, and a combination of competition authority guidance and issues arising from ‘off plan’ sales of flats could point the way to needing to consider applying the lessons from the Indian decision in the UK in future.

Dan Cuthbert outlines where the recent decisions in Game and M&S leave apportionment of rent

Over the last two years, I have been examining in this journal the exercise of break clauses in leases that were conditional on the payment of rent or which related to the recovery of rent for any period after the break date. In my first article (PLJ302, 28 January 2013), I considered Canonical UK Ltd v TST Millbank LLC [2012], PCE Investors Ltd v Cancer Research UK [2012] and Quirkco Investments Ltd v Aspray Transport Ltd [2011]. Each of those cases had found that it was not possible to apportion the rent in circumstances where a break was being exercised. I therefore considered in my first article that despite those judgments it might still be possible to raise a number of arguments to allow for the rent to be apportioned. Those arguments were:

Anna Rawlings and Richard Bartle consider some recent cases involving rights of way

Private rights of way are one of the most contentious easements. As such, and even in hard times, rarely a month goes by in which a new rights of way case does not appear in the law reports, often between private litigants. As such, it is not surprising that three of the four parties in two rights of way cases that have been determined by the Court of Appeal this year involved private litigants – Dwyer v The City of Westminster [2014] and Emmett v Sisson [2014]. The cases provide a useful reminder of the law of abandonment and interference, and raise a number of issues of interest to practitioners, and, more generally, anyone considering litigating over a rights of way dispute.

There is a strong presumption against the grant of permission in cases where listed buildings or conservation areas are affected by proposals. Kirsten Hewson examines planning policy and case law

The Enterprise and Regulatory Reform Act (the ERRA) received Royal Assent on 25 April 2013 and has introduced a number of changes to how proposed development within conservation areas and/or affecting listed buildings is to be approached and determined.

Confiscation of assets from those convicted of a crime is not a new concept. Helen Boniface and Jessica Hickson report on how the confiscation process is being used in a new way with far-reaching implications

People are familiar with large-scale drug dealers and others involved in very serious crime being relieved of the benefits of their criminal conduct through the court system. What will be less familiar is the use of these same powers to claim the assets of companies convicted of regulatory offences, including those in planning, advertising and environmental fields. Recent experience has shown that prosecuting authorities are becoming more willing to consider pursuing confiscation proceedings in cases of regulatory crime. The impact of confiscation upon individuals or companies convicted of regulatory offences can be massive. Even in circumstances where the maximum penalty in a particular case is relatively small, confiscation can attract a very significant confiscation order which dwarfs any fines imposed.

Emma Humphreys highlights a case concerning modification under s84(1)(aa) Law of Property Act 1925

Re Kerai Upper Tribunal (Lands Chamber) [2014] concerned the proposed erection of a detached house in place of a former lodge. The applicant sought to have a restrictive covenant modified so as to permit the construction of the proposed house without the approval of the objector.