Right to use sporting and recreational facilities – class of easements not closed

Surprisingly there was an absence of authority on the proprietary character of a right to use sporting or recreational facilities apart from dicta of Lord Scott doubting that a right to use a neighbour’s swimming pool could be an easement. Now this has been specifically considered and resolved by the decision in Regency Villas Title Limited v Diamond Resorts [2015] EWHC 3564 (Ch).

Rights to use facilities such as swimming pools, golf courses and gyms can be the subject matter of the grant of an easement.

The judgment is more fully discussed in the article to be found at EASEMENTS-class-still-open.pdf

Adverse possession update June 2015

There is a regular flow of cases at all judicial levels concerning adverse possession. This update sets out a number of points decided over the last years. In particular

(i)  Criminal acts – the Court of Appeal in the Best case has firmly decided that  a trespasser committing the new offence of trespassing in a residential building will not be barred from claiming title based on adverse possession;

(ii) First registration – the circumstances in which a squatter will be able to override first registration of the paper title owner is set out in Blackall v Moledina.

February 2015 Property Cases Update

There have been a number of interesting property cases. These include

  1. Amending defective charges – the amendment of a charge which had omitted one of the charged properties by the exercise of the power conferred on the Land Registry by rule 130 LRR 2003 was successfully upheld in Bank of Scotland plc v Greville Development.
  1. Equity of Exoneration as between guarantors – joint guarantors will not necessarily bear the incidence of the debt paid equally. In Day v Shaw Morgan J carried out an investigation to ascertain who benefited from the principal debt and apportioned the burden accordingly.
  1. Onerous planning conditions and conditional contracts – the role of the definition of onerous planning conditions in contracts conditional on the grant of planning permission has not previously been the subject of serious judicial consideration. In Rentokil Initial 1927 plc v Goodman Derrick they were used as the basis for a professional negligence claim which failed. In the course of the judgment there was a useful discussion of the role of such definitions and the balance to be struck. The making of the claim indicated that reference to the risks attached to the inclusion of such definitions should be made in writing by the vendor’s solicitor.
  1. Financial consequences of exercising a break clause – the Court of Appeal has set aside the earlier decision in Marks and Spencer v BNP Paribas Securities so that no part of an advance payment is repayable by the landlord when a break clause terminates a term early. This does not apply as regards service charges regarding which part will be repayable as illustrated by the recent decision of Morgan J. in Friends Life Management Services v A & A Express Building. This judgment sets out the amount to be repaid is to be calculated albeit that the decision is heavily dependent on the terms of the lease.


Property Update – February 2014

  • “T” marks on plans – in Lanfear v Chandler the argument that “T” marks on plans give rise to a presumption as to the ownership of the boundary feature and indicate the boundary was rejected.
  • Fiduciary obligations and Property joint ventures – in Pennyfeathers Limited v Pennyfeathers Property Company Limited the court did not hold that the venture gave rise to independent fiduciary obligations but instead enforced statutory/fiduciary obligations imposed on the parties as directors of the joint venture company.
  • Need to focus when imposing a Quistclose trust on advances – sums are often advanced to fund a property joint venture. Gabriel v Little considered what is required to impose such a trust and the more extensive remedies that flow from the trust. In that case there was held to be no trust.
  • Trap causing landlord’s loss of rights against a surety – the decision in Topland Portfolio No. 1 Limited v Smiths News Trading Limited serves to warn again that the grant of a licence to alter demised premises without the surety as party may result in the loss of the landlord’s rights against the surety.
  • Temporary exemption from rates for unoccupied new non-domestic builds – to avoid deterring the construction of new commercial buildings a new exemption from rates applies to such buildings since October 2013 for a limited period.
  • Continuing problems with Chancel repairs liability – the cessation of this liability as an overriding interest has not removed the need for the prudent purchaser to take out insurance.
  • Community Infrastructure Levy – a new set of amending regulations has replaced those originally presented to Parliament. For a summary see my article “Amendments to Community Infrastructure Levy – work in progress or overload?” which is to be found at Amendments to Community Infrastructure Levy – work in progress or overload? February 2014 Corporate Briefing. There are general issues coming to the fore as a result of the extension of the deadline for the extension of the pooling restriction.

Property Update – October 2013

  • Replacement Of Distress – new statutory procedure from 6th April 2013
  • Rectification And Construction – Ahmad v Secret Garden
  • Community Infrastructure Levy- VAO appeals
  • Overage – Walton Homes v Staffordshire CC on manifest error
  • Holding Over – Barclays Wealth Trustees v Erimus Housing
  • Adverse Possession – moored boats and “roots”

Property Update – September 2013

  • Repudiation of contract to sell off plan – Telford Homes (Creekside) Limited v Ampurius Nu Homes Holdings Limited and Urban 1 (Blonk Street) Limited v Ayres are both a warning to purchasers.
  • Need for entire contract to be in writing – Sukhlall v Bansoodeb is another harsh decision emphasising the importance of including all terms of sale in a written contract.
  • Rates on unoccupied properties – mixed outcomes for arrangements seeking to reduce or avoid rates on vacant premises.
  • SDLT and Sub-sale relief – in HMTC v DV3 RS Limited Partnership the Court of Appeal has very emphatically rejected an attempt to avoid sdlt by using the sub-sale and partnership provisions. The reasoning has wider implications.

Commercial Property Update – June 2013

  • Non-domestic rates – Woolway v Mazars on whether single herediatment can include more non-contiguous floors in building
  • Overage – Cosmichome v Southampton CC – failure of restrictive covenant to protect overage
  • Rent for period after break of lease – Marks & Spencers v BNP Paribas Securities – repayment of rent portion relating to period after break
  • Community Infrastructure Levy – points to bear in mind regarding CIL liability notices