UK: Property Newsletter: April 2023 (Video)

Introduction

Welcome to the April edition of Gatehouse Chambers' Property Newsletter.

This month we have a timely article by our former editor, Carl Brewin, on the Law Commission's review of business tenancies. The Commission's evaluation was announced on 28 March 2023 and will hopefully address the criticism levelled at the 1954 Act, not least, that it is out of date, inflexible and costly which is leading to significant empty business premises. In the same vein, on 31 March 2023 the High Street Rental Actions consultation opened which also looks to address the issue of vacant properties. These radical proposals could give local authorities power to auction off the rental rights to vacant high street properties: High street rental auctions – GOV.UK (www.gov.uk).

We also have an article by Byroni Kleopa, who delves into the Enforcement of Solicitor Undertakings, particularly considering the obiter comments made in the Supreme Court in Harcus Sinclair v Your Lawyers [2021] UKSC 32 that an undertaking given by an incorporated law firm cannot be enforced against a firm under the court's supervisory jurisdiction, which is potentially set to change the landscape of solicitor undertakings in conveyancing.

Our 2-minute interview is with our fabulous Brie Stevens-Hoare KC, one of the joint heads of Gatehouse Chambers and overall superhero in promoting equality and diversity at the bar.

Lina Mattsson also considers a recent Upper Tribunal case.

Update on the updates

For those who have been following these updates for the last few months, here is your next monthly dose of the forthcoming legal changes in the property sector :

• Renters Reform: my pet project, but frustratingly not much has happened and word on the street is that end of September 2023 is now the date by which we are likely to get the Bill.
• MEES: on 1 April 2023 the next stage of the MEES regulations came into force. It is now unlawful to continue to let a commercial property (which is required to have an EPC and not exempt) with an F or G EPC rating, even if the lease was granted prior to the MEES Regulations coming into force in 2018. This means that landlords of commercial properties now risk penalties and publication on the naughty register if they grant or continue to let properties with an EPC rating of below E. The next relevant date is 1 April 2025 which will introduce the requirement to register a valid EPC for commercial lettings.
• Building Safety:
  • 39 major developers have signed up to the Government's developer remediation contract by the 13 March 2023 deadline: Developers sign Gove's building safety contract – GOV.UK (www.gov.uk).
  • The Conveyancing Association has produced guidance on the BSA, which may prove to be a useful quick reference guide for the main concepts and definitions: The-Building-Safety-Act-and-Building-Safety-Leaseholder-Protections-England-Regulations-2022-v7.pdf (conveyancingassociation.org.uk)
  • The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (SI 2023/275) came into force in England on 6 April 2023: The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (legislation.gov.uk). The consequence of these regulations is that care homes and hospitals that are at least 18 meters or 7 storeys are now considered higher-risk buildings ("HRBs") for the purpose of the design and construction phase pursuant to the BSA, including the requirements imposed by Part 3 of the BSA (although note that hospitals and care homes are expressly excluded from the definition of HRBs pursuant to Part 4 and section 65 of the BSA).
  • The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 also came into force on 6 April 2023: The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 (legislation.gov.uk). These require all existing occupied HRBs to be registered by 1 October 2023 on a register set up by the Building Safety Regulator ("the Regulator"), which opened on 12 April 2023: Register a high-rise residential building – GOV.UK (www.gov.uk).
  • The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 additionally came into force of 6 April 2023: The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 (legislation.gov.uk). and set out what constitutes key building information and the duties on the principal accountable person for submitting to the Regulator.
  • On 23 March 2022, the government made the Building Safety Act 2022 (Commencement No 4 and Transitional Provisions) Regulations 2023 (SI 2023/362): The Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations 2023 (legislation.gov.uk). These regulations bring into force certain sections of the BSA: regulation 2 came into force on 1 April 2023, regulation 3 on 6 April 2023 and regulation 4 will come into force on 1 October 2023.
  • The Government has produced draft Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (legislation.gov.uk) and explanatory memorandum: The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023 (legislation.gov.uk). These look set to be in force by the Summer 2023.
  • On 20 April 2023 the Government has also published the Independent Review of the Construction Product Testing Regime: Independent Review of the Construction Product Testing Regime – GOV.UK (www.gov.uk) and provided a press release warning the shareholders of cladding companies who refuse to play ball 'Severe consequences' for cladding companies who refuse to remediate, government warns investors – GOV.UK (www.gov.uk).
  • Welsh Building Safety: on 21 April 2023 the Welsh Government launched it's consultation to seek the equivalent functionality to the English Regulator Regulation of the Building Control profession and Building Control bodies | GOV.WALES .

If there is anything in this newsletter that you'd like to discuss further, or if you have ideas about what you would like to see in next month's edition, please feel free to contact me or contact our marketing team.

Hopefully before our next edition, which will be at the end of May, a warm Spring will be well on its way, and you will have enjoyed the Coronation bank holiday.

Laura Tweedy, Editor

What have the team been up to?

James Hall has been dealing with an arbitration relating to an off-plan property purchase gone wrong, as well as advising on overage again in another matter, and having a week off in sunny (?) Cornwall!

Brie Stevens-Hoare KC is back from the very top of Scotland and its glorious sandy beaches. She is now looking at when an MOU is a contract, a ransom is a ransom and a covenant is an easement. She is so delighted to be back.

Jamal Demachkie has had an eclectic month, combining judicial sittings with various neighbour disputes; one boundary, two rights of way and a harassment claim.

John de Waal KC has been writing an expert determination.

Laura Tweedy has been dealing with questions to experts, lease renewal negotiations and scouring conveyances from the 1880s to find out whether any easements could allow multi million-pound development to go ahead.

Steven Woolf has had, not one, but two trials involving the claimant seeking to establish a beneficial interest in a property. One was successful, the other less so.

Andrew Skelly donned his wellies and went rural this month: a site view with the judge in advance of a trial relating to a claimed Agricultural Holdings Act tenancy, and a site view with the clients relating to various public rights of way around a reservoir and an intended modification order application. Judgment following the three-day trial in the AHA matter is awaited.

Adam Smith-Roberts has been advising on enforcing restrictive covenants on a large new-build housing estate, dealing with a tricky TLATA matter, and starting preparations for what should be an interesting High Court appeal in a 1954 Act renewal case which has just been granted permission.

John Clargo made closing submissions in a commercial disrepair trial (flooding of interior design premises from landlord's retained parts) which commenced – fitfully – in October 2021. He is now preparing closing submissions for a determined boundary trial which commenced – fitfully – in July 2022. He now needs to take a break from this break-neck litigation before preparing for the trial in May of Stage II of litigation concerning a claim for adverse possession (judgment given in Stage I in June 2014, first day of trial having been in February 2012 ...). Phew!

William Golightly has been talking to institutional landlords about their experiences of the new housing regime in Wales, including some of the novel provisions like an unpaid non-familial live-in carer's right to succeed to a tenancy, and other tongue twisters.

Lina Mattsson has been arguing about what constitutes 'value consideration' when contractual consideration is not paid and been pouring over old titles deeds feel like Sherlock – nothing better than a juicy boundary dispute.

Daniel Gatty was busy preparing for a trial in Manchester concerning alleged conveyancing negligence when the Claimants served notice of discontinuance 2 working days before the trial was due to begin. So, he had a more relaxed weekend than anticipated! The rest of his time recently has been spent on issues as varied as rectification of the register on the one hand and a managing agent's failures to account to Daniel's three clients on the other.

Welcome

We welcomed two new practice managers to our property team: Adam Macdonald (left) and Jim Findley (right).

Both have many years' experience of working at other leading sets, and they will be joining James Duncan-Hartill, Patrick Sarson and Samuel Read on the team.

Enforcement of Solicitors' Undertakings

Byroni Kleopa delves into the enforcement of solicitor undertakings, particularly considering the obiter comments made in the Supreme Court in Harcus Sinclair v Your Lawyers [2021] UKSC 32; that an undertaking given by an incorporated law firm cannot be enforced against a firm under the court's supervisory jurisdiction, which is potentially set to change the landscape of solicitor undertaking in conveyancing.

Read the full article here.

The Law Commission review of business tenancy security of tenure

Carl Brewin reviews the Law Commission's review of business tenancies. The Commission's evaluation was announced on 28 March 2023 and will hopefully address the criticism levelled at the 1954 Act, not least, that it is out of date, inflexible and costly which is leading to significant empty business premises.

Read the full article here.

Did you miss? Young Cammiade [2023] UKUT 96 (LC), 2023 WL 03023622

Young Cammiade [2023] UKUT 96 (LC), 2023 WL 03023622

The case raised the interesting question whether section 84(1) of the Law of Property Act 1925 confer power on the Upper Tribunal to discharge a restriction arising under a covenant prohibiting the registration of a transfer of a registered lease without the consent of the covenantee? The short answer is "no".

Read the summary by Lina Mattsson here.

Events

Anatomy of a Land Dispute (in-person seminar)

11 May 2023 ***Please note that this seminar is oversubscribed. We will be rerunning the conference and will announce the new date soon. Watch this space...***

With Brie Stevens-Hoare KC, Daniel Gatty, Gemma de Cordova, Emily Betts, Lina Mattsson and Adam Smith-Roberts.

To register your interest in the second date, please email events@gatehouselaw.co.uk.

Gatehouse Chambers on Demand

You can catch up on our previous webinars and Brews by visiting the insights page on our website.

2 minutes with Brie Stevens-Hoare KC

Laura Tweedy interviews Brie Stevens-Hoare KC for the third video in our '2 minutes with...' series.

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