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Property Law Journal: September 2013

Christopher Cant assesses the dangers of terminating prematurely with the consequent threats of repudiatory breach

Terminating a contract for the sale of land has always been a dangerous step justifying extreme caution. The danger to be avoided is that one party may treat a breach by the other as a repudiation of the contract and accept that repudiation, only for it then to be held that the breach was not a repudiation, and so the acceptance is itself a repudiation that may be accepted by the party in breach. The party not in breach is converted from innocent party to transgressor with heavy financial penalties.

Fieldfisher

Roger Sargologo and Carlos Pierce consider below what fracking involves and the legal issues that arise

Barely a day goes by nowadays without there being something in the news about fracking or protests connected with a proposed site.

Mark Pawlowski examines a recent case on the meaning of tenant’s fixtures in the context of a disputed claim to commercial plant and machinery

In the recent case of Peel Land and Property (Ports No 3) Ltd v TS Sheerness Steel Ltd [2013], the court was asked to consider whether certain large items of plant and machinery installed by the tenant in a steel mill were to be regarded as fixtures belonging to the landlord or, alternatively, as chattels or tenant’s fixtures capable of removal by the tenant. The judgment of Morgan J is of particular interest in its analysis of the legal distinction between chattels and fixtures and the acknowledgement that, although objects may start out as being chattels built into a building’s structure, they may nevertheless become in law part and parcel of the land and removable as tenant’s fixtures.

John Starr

John Starr reviews a case where arguments concerning the adjudicator’s jurisdiction failed and common sense prevailed

Section 108(1) of the Housing Grants, Construction and Regeneration Act 1996 says that a party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure that complies with that section. The procedure must, among other things, provide for referral ‘at any time’ and must provide that the decision of the adjudicator is binding on the parties until the dispute is finally determined by legal proceedings, by arbitration or by agreement. In other words, the parties must comply with the adjudicator’s decision.

Shanna Davison looks at the new regime and how it compares to the current law of distress

The law of distress for rent arrears is an ancient remedy that has remained broadly unchanged for centuries. In 1749, a practitioner described it as: ‘the remedy obtained so early in our law, that we have no memorial of its original with us’. (Gilbert: The Law and Practice of Distresses and Replevin (3rd ed, 1794), p2, quoted in para 1, Distress for Rent (1991) Law Com No 194). In its earlier form, it entitled a landlord to enter property let to its tenant, seize goods and hold them until any rent arrears had been settled. Since 1689, a landlord has also been entitled to sell the goods to recover the outstanding rent.

Juliet Brook discusses a case that provides a salient reminder of ‘death bed wills’

For many practitioners, the doctrine of donatio mortis causa (DMC) is one of those obscure principles that was applied with relish during equity and trusts exams, and has been consigned to the recesses of memory ever since. However, Vallee v Birchwood [2013] shows that it can still prove extremely useful.

Dan Cuthbert assesses the problem with Ellis v Rowbotham in the light of a recent decision

In my article ‘Breaking up is hard to do’, PLJ 302, 28 January 2013, p22, I considered the difficulties that tenants were having, with either exercising break clauses in leases that were conditional on the payment of rent or recovering rent for any period after the break date. At that time there had been three recent cases that had found against the tenants, namely: Cannonical UK Ltd v TST Millbank LLC [2012], PCE Investors Ltd v Cancer Research UK [2012] and Quirkco Investments Ltd v Aspray Transport Ltd [2011]. In light of those cases, I went on to consider what arguments might still remain to a tenant and I identified four possibilities.