Are you standing in a never-ending (and suitably socially distanced) queue? Or, after hours online clicking refresh, have you found yourself unceremoniously bumped to the back of the waiting list for a coveted Christmas grocery delivery? Let us help you pass the time with our festive legal review.
Naughty or nice?
Every Christmas season, Santa and his sleigh bring Christmas cheer to all good girls and boys. So were you naughty or nice this year? Ray Stevens tells us that Santa knows. You can run. You can hide. But you can’t get away. He’s got binoculars focused on you every day: Santa Claus is Watching You.
The owners of luxurious apartments with glass facades who found themselves under the observation of visitors to the viewing gallery at Tate Modern, in Fearn v Board of Trustees of Tate Gallery [2020] EWCA Civ 104; [2020] EGLR 14, will know exactly how that feels. But, unhappily for them, they had no cause of action in nuisance.
A spaceman came travelling
Will you be using Norad’s Santa Tracker to follow Jolly Old St Nick’s sleigh as he travels through the skies across the globe? If so, perhaps you will also be listening to Chris de Burgh when you do. His A Spaceman Came Travelling, in a craft that hangs in the sky like a star, gives the traditional Christmas story a modern twist.
But it is not always easy to blend the old with the modern, as the designer of an “uncompromisingly contemporary” home on land subject to restrictive covenants will testify. Her neighbours object to the construction of a “gently glowing” glass cube, which will be particularly noticeable at night, beside their listed building. And the Court of Appeal’s decision in Hicks v 89 Holland Park (Management) Ltd [2020] EWCA Civ 758; [2020] EGLR 28 – that neighbours have a legitimate interest in the appearance of what is built next to them – means that the litigation is far from over.
Rockin’ around the Christmas tree?
Could a cynical breach of a restrictive covenant by a developer seeking to provide social housing to meet section 106 obligations be remedied by the modification of the covenant in return for a monetary payment to cover the cost of planting along a boundary to provide privacy for children using a tree house and the gardens of a hospice?
The Supreme Court’s refusal to modify the covenant pursuant to section 84(1)(aa) of the Law of Property Act 1925 in Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45; [2020] PLSCS 201 indicates that flagrantly flouting legal obligations may prove expensive, and may result in a little less jollity at the developer’s Christmas party hop this year… whether held socially distanced or over Zoom.
Exclusive shopping mall
Santa will have vivid memories of the unfortunate occasion when, while Parking Around the Shopping Mall (a very deep cut, we will admit), he lost his sleigh. Rudolph was in a loading zone and got mistletoe-d away.
Sadly for the landlord in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36; [2020] PLSCS 161, the Supreme Court refused to consign an exclusivity covenant in favour of an anchor tenant to a similar fate. The covenant was part of the accepted pattern or structure of a trading society, so it was not a restraint on trade that was against public policy.
Writs: the season to be jolly
In the spirit of I’ll Sue Ya by “Weird Al” Yankovic (his many gripes include retailer Neiman Marcus putting up their Christmas decorations “way out of season”), Elizabeth Dwomoh would like to sue 2020 for being a bad year. But, as she cannot, she has chosen to focus on what others have sued for. And, starting from the top of the legal court tree, she recalls the judgment of the Supreme Court in Duval v 11-13 Randolph Crescent Ltd [2020] UKSC 18; [2020] EGLR 17.
Dr Julia Duval sued because her landlord sought to license another tenant’s structural works in breach of an absolute covenant in her lease. The Supreme Court held that the landlord could not waive the breach because to do so would constitute a derogation from grant. On provision of security, Duval was entitled to require the landlord to enforce the mutual enforceability covenant.
Festive glow
Is that Dean Martin playing in the background? “Oh, the weather outside is frightful…” At least the decision in Trecarrell House Ltd v Rouncefield [2020] [2020] EWCA Civ 760; [2020] EGLR 30 gave landlords something to cheer about this year.
The Court of Appeal clarified that a landlord’s failure to provide a tenant with a gas safety certificate prior to going into occupation was not an absolute bar to the subsequent service of a section 21 notice. If the certificate was provided before the notice was served, the notice was valid.
Landlords in that queue go ahead and sing, “but the [gas] fire is so delightful… Let it snow! Let it snow! Let it snow!”
Bang the bells to the dawn
Perhaps not in the way intended by RuPaul in Hey Sis, it’s Christmas, some landlords will want to cross their tenants off their wish lists. Yet, when seeking to forfeit a tenant’s lease for serious breaches, Marchitelli v 15 Westgate Terrace Ltd [2020] UKUT 192 (LC); [2020] PLSCS 122 demonstrates that the “delicto is in the detail”.
In Marchitelli, the Upper Tribunal (Lands Chamber) agreed there was sufficient evidence from which the First-tier Tribunal could draw inferences that the lessee’s flat was being used for prostitution by her subtenant. Direct evidence of any “flagrante delicto” was not required. Yet, the UT found that the FTT had failed to make clear findings as to the lessee’s own culpability.
A determination of breach under section 168 of the Commonhold and Leasehold Reform Act 2002 required the same level of transparency as a forfeiture notice served under section 146 of the Law of Property Act 1925. To paraphrase RuPaul, “tenant woes, who would ask for more?”
Confusing the message of Christmas
In her 1958 hit A Five Pound Box of Money, American actress and singer Pearl Bailey implored Santa: “Listen to me, honey. Give Pearl something that would be some use to me. Like a five pound box of money.” Traditionalists might feel that somewhat misses the Christmas spirit.
But it reflects the desire of the successful liquidators in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25; [2020] EGLR 29, who successfully overturned the first-instance and appellate decisions denying their ability to commence adjudication proceedings because of Bresco’s insolvency. And, although Lord Briggs observed in his judgment that enabling one party to recover money was not the be-all and end-all of adjudication, liquidators in 2021 may be echoing Bailey’s desire to be given something of some use.
It’ll be lonely this Christmas
No review of the year would be complete without a mention of the Covid-19 pandemic, which has blighted everyone’s lives. Lockdown caused a lot of loneliness, and fans of Mud’s Christmas hit may well echo its sentiments.
However, as we end the year with positive news of vaccines, some businesses with extensions to their business interruption insurance policies might also take comfort from the Divisional Court’s decision in The Financial Conduct Authority v Arch Insurance (UK) Ltd and others [2020] EWHC 2448 (Comm) that some of those extensions might cover them for some of the losses they suffered as a result of lockdown. They will also hope that the Supreme Court does not overturn the ruling when it completes its review of the decision on appeal, which was heard in November.
The end of pretty paper?
The past year has seen other significant developments too. Thanks to lockdown, we are using virtual meeting tools more widely than ever; children can even make video calls to Santa’s grotto this year.
And the Land Registry is, at long last, accepting electronic signatures, thereby enabling conveyancing documents to become fully electronic. Perhaps, in time, Willie Nelson’s Pretty Paper will be a nostalgic reminder of the days when there was no alternative to pen-and-paper signatures, and documents were sewn up with pink ribbon.
That (almost) completes our musical round-up – not for nothing are we called Legal Notes. All that is left is to say Merry Christmas Everyone!
Allyson Colby is a property law consultant, Elizabeth Dwomoh is a barrister at Lamb Chambers and Stuart Pemble is a partner at Mills & Reeve
