Last updateTue, 24 Feb 2015 5pm

Property Law Journal: September 2014
Serle Court

Will restrictive covenants pass the tests under Chapter 1 of the Competition Act 1998? Andrew Francis outlines a recent case

Hot on the heels of the decision of HHJ Dight in Martin Retail Group Ltd v Crawley Borough Council [2013] (reported on in ‘The fire and Furnace of land covenants’, PLJ322, p10), the decision of Henderson J in the Chancery Division of the High Court in Carewatch Care Services Ltd v Focus Caring Services Ltd [2014] is another example of how competition law issues require consideration in the context of restrictive covenants affecting land.


Euan McSherry reviews a Scottish case where a business common sense construction triumphed in the interpretation of a terminal dilapidations claim

In the Scottish case of Grove Investments Ltd v Cape Building Products Ltd [2014], Grove (the landlords) and Cape (the tenants) were in dispute as to the construction of the dilapidations provisions of a commercial lease for industrial premises, following the termination of that lease. The Inner House (the part of the Court of Session which acts as a court of appeal for cases from the lower Scottish courts and certain tribunals) was of the view that it was not permitted to correct ‘a bad bargain’, and that, where a contractual provision is capable of more than one meaning, it should adopt the meaning that best accords with commercial common sense. It is a familiar line of judicial reasoning that will resonate comfortably with those involved in advising on lease interpretation.

Kathryn Jump explains the key aspects of the levy and its impact on development

On 12 June 2014 the government introduced new consolidated guidance on the use and effect of the community infrastructure levy (CIL). This new guidance brings together a number of recent changes to the levy system, and reinforces the government’s commitment to the tax.

Elizabeth Sturgess and David Shakesby consider the implications of listing land or buildings as assets of community value

The Localism Act 2011 was launched by the coalition government with clear aims to achieve a significant shift in power away from central government towards local authorities and local people. Many of the changes are well known, such as the abolition of regional strategies. However, one area that has only more recently started to come into the public arena is that of the obligation on every local authority to maintain a list of land or buildings of community value and the opportunities afforded to local groups to nominate land to be added to the list.

Mark Pawlowski looks at a landmark ruling on how an agent who has taken advantage of a bribe or received a secret commission in breach of their fiduciary duties holds the amount received

FHR European Ventures LLP v Cedar Capital Partners LLC [2014] is a landmark case on unauthorised profits, not least because the court has taken the opportunity to sweep away almost 200 years of judicial and academic debate as to whether a principal has a proprietary remedy in cases where their agent has taken a bribe or received a secret commission in breach of their fiduciary duties.

John Starr

John Starr evaluates the obligation to mitigate and warns of the possibility that there may be no recovery of costs from the original contractor

Most standard forms of building contract contain the concept of a defects liability period (now referred to in the JCT suite of contracts as the ‘rectification period’), during which the contractor is obliged to return to site and remedy any defects that have arisen following practical completion.

James Souter reports on a case which threw up some novel arguments

After a long-running battle for control of Pimlico’s Dolphin Square, US private equity firm Westbrook Partners won a landmark enfranchisement case paving the way for them to purchase the freehold. The lengthy 158-page judgment in Westbrook Dolphin Square Ltd v Friends Life Ltd [2014] was handed down on 17 July 2014, containing detailed analysis of some very difficult legal and valuation concepts. Westbrook, the claimant, as nominee for the tenants claiming the freehold, succeeded in defeating all seven grounds of the challenge raised by the defendant freeholder, Friends Life. Subject to any appeal by Friends Life, the way is now clear for Westbrook to proceed with the purchase of the freehold at a price to be agreed or, failing that, determined by the Property Chamber of the First Tier Tribunal. The price will comfortably be the largest premium ever paid under the Leasehold Reform, Housing and Urban Development Act 1993 and could be anything up to £200m. Therefore, irrespective of how Friends Life responds to the judgment, the claim is bound to rumble on for many years to come. The valuation aspects of the claim alone are almost certain to be pursued to the Upper Tribunal and, quite possibly, beyond that to the Court of Appeal.