The Supreme Court has had a few things to say for property professionals in the past quarter: from a ruling on rating; a consideration of unjust enrichment and subrogation; to the highly anticipated Marks & Spencer judgment, which saw landlords breathing a collective sigh of relief. Other topics recently covered in the Estates Gazette Law Reports include negligent valuation, forfeiture and environmental impact assessments. Each report is available now on EGi with a new case added each week.
Woolway (VO) v Mazars LLP
[2015] UKSC 53; [2015] EGLR 56
Rates are now a significant part of total occupation costs. In this case the Supreme Court held in favour of the Valuation Office, and overruling authority, that two separate self-contained floors in an office building are individual “hereditaments” for rating purposes, even though both are occupied by the same tenant for its business.
R (on the application of Champion) v North Norfolk District Council and another
[2015] UKSC 52; [2015] EGLR 59
A useful case for illustrating the scope of environmental impact assessments and “appropriate assessments” under the Habitats Directive in a planning context. It also drew attention to the need for judicial review applicants to be realistic at the outset as to whether, even if their complaint is upheld, they can show that there might have been a different result.
Freifeld and another v West Kensington Court Ltd [2015] EWCA Civ 806; [2015] EGLR 60
The proposition that relief from forfeiture will not be granted for a deliberate breach of covenant has limits. Here, the Court of Appeal considered that forfeiting a very valuable long leasehold interest would give the landlord a disproportionate windfall, but was not prepared to force a continuation of the landlord/tenant relationship, and made an ingenious order.
Westminster City Council v UKI (Kingsway) Ltd [2015] UKUT 301 (LC); [2016] EGLR 2
A decision on the validity of service of a formal notice in a rating context which, unusually, took the approach that valid service depended on whether the notice in fact came to the recipient’s attention, rather than the literal adequacy of the steps taken by the server of the notice. A pragmatic result, but perhaps controversial for the uncertainty it inevitably permits.
Canada Square Operations Ltd v Kinleigh Folkard & Hayward Ltd [2016] EGLR 3
As fallout from the 2008 crash, the usual claims regarding negligent mortgage valuations, with the difficult issue of limitation, will arise. This case usefully illustrates the process for determining when the law treats a mortgagee as suffering loss in a case where there would have been no transaction at all if a negligent valuation had not been given.
Titan Europe 2006-3 plc v Colliers International UK plc (in liquidation)
[2015] EWCA Civ 1083; [2016] EGLR 6
A worthwhile case study regarding valuers’ negligence, in particular for illustrating where a court’s findings on value move from evaluating primary evidence to drawing secondary conclusions, the latter being far more open to appeal.
Bank of Cyprus UK Ltd v Menelaou
[2015] UKSC 66; [2016] EGLR 7
The intricate scope of the doctrines of unjust enrichment and subrogation in a mortgage context continues to develop. This important Supreme Court decision underlines the trend in favour of lenders, although the court insisted that the tests still rest on a rigorous analytical approach, rather than a broad brush of “fairness”.
Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2015] UKSC 72; [2016] EGLR 8
Long-awaited authority on the burning question of whether a tenant can recover back a proportion of rent paid in advance when a break clause under a lease in common commercial form is successfully operated mid-quarter. A reminder of the basic common law rule that rent is not apportionable and that the requirement of “necessity” for implying a term on grounds of business efficacy is strict.
OTHER RECENT REPORTS
The following cases have been reported in the EGLR over the past three months, and are available on EGi:
- Wishart v Credit & Mercantile plc [2015] EWCA Civ 655; [2015] EGLR 57: does a beneficial owner have rights capable of binding a lender?
- Upton v Parmar and others [2015] EWCA Civ 795; [2015] EGLR 58: an explanation of the logic and proper application of the “hedge and ditch” rule.
- Chesterton Commercial (Oxon) Ltd v Oxfordshire County Council [2015] EWHC 2020 (Ch); [2015] EGLR 62: is a highway authority negligent in failing to record an ongoing investigation into the highway status of land?
- The Creative Foundation v Dreamland Leisure Ltd and others [2015] EWHC 2556 (Ch); [2015] EGLR 63: what term is implied as to ownership of parts of a building removed in the course of repair works? Did ownership vest in the landlord or tenant?
- A2 Dominion Homes Ltd v Prince Evans LLP [2015] EWHC 2490 (Ch); [2015] EGLR 64: Can leases granted without the bank’s consent have priority over a charge by virtue of a unilateral notice such that the bank’s consent is not required?
- Hakimzay Ltd v Swailes [2015] EWHC B14 (Ch); [2016] EGLR 1: did the vendor validly rescind the contract and was time of the essence?
HH Hazel Marshall QC practised at the Chancery Bar as Hazel Williamson QC, becoming one of the foremost real property silks specialising in commercial leaseholds. She became Senior Chancery Judge at the Central London Civil Justice Centre until retiring to Guernsey in 2013, where she sits part-time as a Lt-Bailiff of the Royal Court
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