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Property Law Journal: September 2016
John Starr

John Starr outlines the court’s stance on anti-oral variation clauses

After several years without a decision on ‘no oral variation’ or ‘anti-oral variation’ clauses, two have come along at once. Such a clause in a contract purports to prevent any variation of the terms of that contract unless such variation is in writing and signed by the parties. The idea of such clauses is to promote certainty and avoid false or frivolous claims of an oral agreement, and arguably they could also usefully prevent a person in a large organisation producing a document which unwittingly and unintentionally is inconsistent with a provision in a contract between the organisation and a counterparty.

Forsters LLP

The Upper Tribunal has provided clarification on when costs will be awarded for ‘unreasonable’ behaviour. Sarah Heatley explains

The Upper Tribunal (Lands Chamber) has handed down its long-awaited decision in a number of conjoined appeals: Willow Court Management Company (1985) Ltd v Alexander; Sinclair v 231 Sussex Gardens Right to Manage Ltd; Stone v 54 Hogarth Road, London SW5 Management Ltd [2016].

Lucy McCormick analyses two recent Court of Appeal cases that emphasise the importance of signage on private property

In a landmark easement decision, the Court of Appeal has recently given judgment in Winterburn v Bennett [2016]. The court held that a sign on land indicating that a certain activity is prohibited is sufficient to render that activity ‘contentious’, and thus prevent an easement from prescription from arising. It will now be significantly easier for landowners to protect their rights.

A recent High Court case means more uncertainty for landlords on relief from forfeiture. Martin McKeague provides some practical advice

Forfeiture is a landlord’s ultimate remedy when a tenant is in breach of its lease. It enables the landlord to re-enter the premises, take back possession and bring the lease to an end. In an uncertain market or economic downturn, there is generally an increase in the instances of tenant default and lease forfeiture. However forfeiting a lease is a draconian remedy, which can have significant and far-reaching consequences for tenants. It is therefore a step which is taken very seriously by the courts. Add to that the fact that this is a complex area of law which is fraught with traps for the unwary, and it is easy to see why it is important for landlords, agents and tenants to have a clear understanding of some of the key legal and practical issues.

Mark Pawlowski asks whether there is scope for giving effect to informal land agreements by applying the doctrine of proprietary estoppel

In Yeoman’s Row Management Ltd v Cobbe [2008], Lord Scott indicated that an agreement to acquire an interest in land which did not comply with s2(1) of the Law of Property (Miscellaneous Provisions) Act (the 1989 Act) could not be saved by the application of proprietary estoppel. Although s2(5) of the 1989 Act expressly makes exception for ‘resulting, implied or constructive trusts’, it significantly makes no reference at all to proprietary estoppel. In the words of Lord Scott:

A ‘right to light’ case has lessons for developers wishing to avoid an injunction. Rashpal Soomal explores the nature of the court’s discretion

Any professional advising developers in particular needs to be aware of the circumstances in which an injunction is likely to be awarded by a court. General commercial or contract lawyers are perhaps less familiar with the remedies of specific performance or the grant of an injunction, but both remedies (equitable in nature) are very familiar to property lawyers. English law has long regarded property and appurtenant property rights to be unique rather than akin to interchangeable commodities or services. Because of the concept that each piece of land or estate is unique, an injunction has often been readily awarded to protect against any interference – no matter how minor – with property or appurtenant property rights such as easements or restrictive covenants. The traditional approach was that if an interference with a property right occurred, then an injunction would be granted unless there were exceptional circumstances. Therefore even if only one person was impacted and a hugely beneficial development was potentially compromised, an injunction would still be the starting point. The only recognised exception would be if the person impacted stated in open correspondence that they were really after money, not an injunction.

Dentons

Stephen Ashworth reviews what ‘best consideration’ means in practice and how it is affecting the property market

In a world of increasing devolution and local responsibility, local authorities still need ministerial consent to dispose of land at less than best consideration. Why is this the case, and what does this mean in practice?