HH Hazel Marshall QC shares her thoughts on the most interesting recent selections for the Estates Gazette Law Reports
A raft of Court of Appeal judgments has dominated the last quarter’s Estates Gazette Law Reports. The consequences of fraudulent sales have been examined, reminding practitioners of the duties they owe. Another case covers the position for an owner occupier in financial difficulty. Also featured are Shari’a compliant finance transactions, the problems of trespassers acquiring rights, an assessment of costs and the extent of a demise. New reports continue to be added to EGi each week.
Bacciottini and another v Gotelee & Goldsmith (a firm) [2016] EWCA Civ 170; [2016] EGLR 29
In a claim for damages for professional negligence, how far must the effect of events subsequent to the breach of contract be taken into account? In this case the reduced value of a property resulting from an unnoticed planning restriction was far more than the sum it later cost the purchaser to get it lifted. In awarding only the latter, the Court of Appeal applied the test of a “fair result” – but the claimant’s duty to mitigate his loss was easy to see, and in other cases the effects of this test may not be so clear.
Financial Conduct Authority v Asset Land Investment plc and another [2016] UKSC 17; [2016] EGLR 34
An important case for publicising that schemes to enable ordinary investors’ financial participation in land development projects (“land banking”) can qualify as “collective investment schemes”, and if so, they will be subject to all the regulatory compliance requirements that such investment schemes attract.
Bennett and another v Winterburn and another [2016] EWCA Civ 482; [2016] EGLR 35
How do you prevent a persistent serial trespasser from claiming to acquire rights by long use? This case, dealing with persistent car parking, shows that you do not necessarily need to resort to legal proceedings (or fisticuffs); a sufficiently prominent notice denying such rights can be effective to prevent any such use being claimed to be “as of right”.
Tibber v Buckley and another [2015] EWCA Civ 1294 [2016] EGLR 36
In leasehold enfranchisement, the reversioner is bound by the terms of the counter notice which he serves in response to a notice to acquire the freehold. It has been a vexed question, therefore, how far this counter notice must contain details of the terms and extent of any leasebacks of the reversioner is to succeed in retaining them.
Purrunsing v A’Court & Co (a firm) and another [2016] EWHC 789 (Ch); [2016] EGLR 37
This case examines the remedies available to a purchaser who is the victim of a fraudulent sale of property by an impostor and loses his money. It provides an instructive analysis of the duties owed to the purchaser by, not only his own solicitor, but also the vendor’s conveyancing solicitor, in handling and releasing purchase monies.
Project Blue Ltd v Commissioners for HM Revenue and Customs [2016] EWCA Civ 485; [2016] EGLR 40
The demand for finance transactions which are structured to comply with Shari’a law is increasing. They can give rise to issues as to the correct application of legislation drafted without having such transactions in mind. This case deals with the incidence of SDLT in a case where a lease at a rent was used to avoid payment of interest, and emphasises that the tax charge depends on the transactions actually put into effect. So it may simply be more expensive to use a Shari’a compliant structure.
Mortgage Express v Lambert [2016] EWCA Civ 555; [2016] EGLR 41
The all too frequent case of an owner occupier in financial difficulties, induced to sell her house to a quasi-fraudster at a gross undervalue, on the promise of a right to remain in occupation. When the fraudster defaults, this case shows that the occupier’s claim in such a case is not even capable of being an ”overriding interest”. A very sad case, but a very useful recap of principles.
OTHER RECENT REPORTS
Hemmise and another v Tower Hamlets London Borough Council [2016] UKUT 109 (LC); [2016] EGLR 30: was the Upper Tribunal entitled to depart from decision of previous tribunal and were the parties bound by the issue of estoppel?
Medway Council v Secretary of State for Communities and Local Government [2016] EWHC 644 (Admin); [2016] EGLR 31: was a developer’s application successful to remove affordable housing conditions, owing to claimed non-viability?
Macleish v Littlestone and others [2016] EWCA Civ 127; [2016] EGLR 32: how are costs assessed where a landlord successfully claims against his tenant for breaches of covenant?
LSREF III Wight Ltd v Gateley LLP [2016] EWCA Civ 359; [2016] EGLR 33: In solicitor’s negligence case, what is the proper approach to assessment of loss and mitigation of damage?
Trustees of Sloane Stanley Estate v Mundy and two similar cases [2016] UKUT 223 (LC); [2016] EGLR 38: did the “Parthenia model” produce accurate results when valuing existing leases of flats without the benefit of rights under 1993 Act?
Levett-Dunn and others v NHS Property Services Ltd [2016] EWHC 943 (Ch); [2016] EGLR 39: was a service of notice invalid on the ground that the address was not the landlords’ place of abode or business and was the service validated by section 23(2) of the Landlord and Tenant Act 1927?
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
