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Property Law Journal: September 2015

Mark Pawlowski questions the usefulness of legal fictions in leasehold law

A recurring concern among legal practitioners is the fear of uncertainty in our law. One obvious consequence of uncertainty is that it may become difficult (or even impossible) to predict with any degree of accuracy whether or not a given claim is likely to meet with success. Harman J in Campbell Discount Company Ltd v Bridge [1961], at 459, put it neatly: ‘the process of robust over-simplification may lead, if followed far enough, to palm-tree justice’. The days of the portable palm tree are not yet with us, but there is a growing tendency among the judiciary to latch on to a variety of legal abstractions as a means of disguising the inherently subjective nature of their decisions.

Dentons

Bryan Johnston and Alexa Phoenix consider a new approach to domestic rates following a recent Supreme Court decision

In Woolway v Mazars [2015], the Supreme Court has handed down judgment in a non-domestic ratings case that has overturned the approach to ascertaining hereditaments where there are floors separated by common parts occupied by a tenant in the same building.

Birketts LLP

Richard Eaton and Laura Tanguay examine some welcome clarification from the Court of Appeal on balancing the competing interests of co-owners of property under a trust of land

People own jointly held property, whether it be residential, agricultural or commercial, for many different reasons: siblings may inherit property under a will; friends may club together to get onto the property ladder; couples looking to set up home may choose to buy a property together – and so the list continues. All is well when the joint owners have the same intention, but what happens when the parties cannot agree about what to do with the property? What if one wants to sell and the other does not? A common example is where unmarried co-owners split up and one wants to sell and the other wants to buy out the other party so as to remain living there.

Assad Maqbool and Douglas Rhodes analyse an important Upper Tribunal case, which settled longstanding uncertainty over how to consult with leaseholders when procuring works under framework agreements

On the face of it, Royal Borough of Kensington and Chelsea v the Lessees of 1-124 Pond House [2015] (the RBKC case) concerned a relatively straightforward application by the Royal Borough of Kensington and Chelsea (RBKC) under s27A(3) of the Landlord and Tenant Act 1985 (LTA 1985) for determination of the liability of certain lessees to pay residential service charges. However, the case is notable for the following reasons:

John Starr

John Starr highlights two cases which have reconsidered adjudication and the role of the court

It is well known to those involved in dispute resolution in the construction sector that an adjudicator’s decision has a temporarily binding quality. What that means is that it is binding on the parties, in the sense that they must comply with it, and the court will enforce it, regardless of any complaints about its correctness or other matters which the losing party may wish to raise, unless and until the dispute is finally resolved, which may be by legal proceedings, arbitration (where applicable) or agreement.

Kara Bruce investigates how ecological and environmental questions have impacted on development in recent cases

Ecological and environmental considerations continue to play an important role in the determination of planning applications.

Penelope-Jane Gibbs discusses the important procedural requirements for tenants of commercial premises to consider before the expiry of their lease

If a tenant of commercial premises has a lease which is nearing the end of its contractual term, or if a tenant is considering serving a tenant’s notice to quit, or exercising a tenant’s break option, there are a number of very important issues to carefully consider and planning ahead is crucial.