Cases Flashcards
(18 cards)
Shimizu (UK) Limited v Westminster City
Council
The House of Lords - Shimizu (UK) Limited v Westminster City Council [1997] 1 WLR 168 held that the term ‘listed building’ did not include part of a listed building, so no Listed Building Consent is needed for the demolition of part of a listed building unless it affects the character of the building as one of special architectural or historical interest.
Listed building – did not include part of a building – no consent required.
However, for the purposes of the LPC, you may assume any partial demolition will affect the character of the building as one of special architectural or historical interest such that Listed Building Consent will be needed.
Cottingham v Attey Bower and
Jones (a firm) [2000]
Failure to obtain copies of the Building Regulations approvals – negligence on part of solicitor.
Ladenbau, G&K (UK) Ltd v Crawley & de Reya
[1978] 1WLR 266 - a solicitor was held to be negligent for failing to make a search of the Common Land Register. If the property is in an area which may be affected by a right of common, e.g. is in or near an area of open countryside, or is in a non-built-up urban area, or is a newly built property in a previously non-built up area, a search should be made by asking Optional Enquiry 22 on Form CON 29O.
William Sindall Plc v
Cambridgeshire County Council [1994] 3 All ER 932.
The seller only has a limited duty to disclose information to the buyer’s solicitor. However, the seller should be mindful of stating in its replies “Not so far as the seller is aware” because this would amount to an assertion that the seller had made reasonable investigations into the matter, William Sindall Plc v Cambridgeshire County Council [1994] 3 All ER 932.
Gordon v Selico
Painting of dry rot, on the buyer’s survey no trace of dry rot was found. When they moved in, the buyers discovered the dry rot. Painting over it (deliberate concealment) – was a misrepresentation.
Remedy – damages - only actual losses are recoverable. The seller certainly cannot deliberately mislead the buyer, for example, by concealing physical defects or answering enquiries dishonestly.
The seller has a duty not to mislead the buyer, throughout from outset to completion (e.g. in response to enquiries).
Patel v Daybells
There is a risk of the buyer completing the purchase on the basis of such an undertaking, as technically the buyer buys subject to the seller’s mortgage.
In Patel, the seller’s solicitor failed to redeem the mortgage. However, they were not negligent in accepting an undertaking from the seller’s solicitor that the mortgage would be redeemed in full.
Street v Mountford
Lord Templeman identified three essential criteria for a lease:
- the grant of exclusive possession
- for a period of time which is certain
- the payment of rent
O’ May v City of London Real Property Co Ltd
This is the leading case on how a court will determine other terms under s.35 of the 1954 Act where the parties cannot agree. It held that the current tenancy is the starting point.
The court will consider proposed amendments but will decide the terms of the new lease according to justice and fairness, having regard to all relevant circumstances. The court should not try to freeze the terms of the current lease. Some terms might be out of date or unsuitable, particularly those of older leases.
Jervis v Harris
Self-help
The case of Jervis v Harris concluded that, if the landlord reserves the right to enter the premises, makes good the damage and recovers the cost from a tenant and describes the sum due from the tenant as a debt this money would be recoverable by the landlord as a debt. Rather than sit back and watch its investment reduce in value as a result of the tenant’s breach of the repair covenant, and rather than wait for an order for specific performance from the courts:
The landlord can enter the premises and carry out the repairs himself. He will then sue the tenant to recover his costs in full.
The advantage of this for the landlord is that any sum claimed is not subject to the same limitations or requirements as a claim for damages under s.18 of the LTA or under the LP(R)A.
NB. The landlord can only do this if the lease expressly reserves the right to do so. Such a provision in the lease is known in practice as the ‘Jervis & Harris’ clause.
Lambert v Woolworth
‘improvements’ are to be construed widely as works which improve the premises from the tenant’s perspective.
Iqbal v Thakrar
The landlord was entitled to withhold consent to the tenant’s proposed alterations because he had serious concerns as to the potential consequences which the works would have to the structure of the building.
Has consent been unreasonably withheld?
Section 19(2) LTA 1927 allows the landlord to require as a condition of giving consent:
payment of compensation for loss in value to the reversion caused by
the alterations;
reinstatement of the premises if reasonable (at the end of the lease
term); and
payment of the landlord’s expenses in giving consent.
Dong Bang Minerva (UK) v Davina
The tenant should provide the Landlord with sufficient details of the proposed transaction.
It was said in Dong Bang Minerva (UK) v Davina [1996] 2 EGLR 31:
“If a landlord has been furnished with sufficient particulars of the transaction, perhaps such as would usually comprise “Heads of Terms” agreed between parties to the transaction, then he would prima facie know the substance of the true nature of the transaction so as to be able to make a sensible decision on its merits….”
It was considered that 28 days from receipt of the application and references by the landlord was a reasonable period within which to inform the tenant of the decision.
Milmo v Carreras
When granting an underlease out of a superior leasehold interest the term should always be less than that of the superior lease otherwise it will take effect as an assignment
International Drilling Fluids Limited v Louisville Investments (Uxbridge)
Limited [1986] Ch 513
This case laid down guidelines as to when a court would consider a landlord to be acting reasonably or unreasonably in withholding consent. A landlord is not entitled to refuse his consent on grounds which have nothing to do with the landlord and tenant relationship. For example, it would not be reasonable for a landlord to refuse consent on the basis that he did not like the proposed assignee or he supported a different football team. It must be something to do with, e.g. the proposed assignee’s ability to pay the rent or bad references.
Moss Bros Group plc v CSC Properties Ltd [1999] EGCS 47
Landlords of shopping centres will usually have a prescribed tenant mix policy.
For example, it will stipulate that certain kinds of retail tenant are to be situated in certain areas of the centre, e.g. food court areas/clothing units. In this case,
it was held that a landlord was reasonable in refusing consent as the proposed assignee’s business did not fit in with the landlord’s tenant-mix policy. The policy must be known to tenants and must be a rational one .
Ashworth Frazer Ltd v Gloucester City Council [2002]
The House of Lords confirmed that where a landlord believed that the proposed assignee intended to use the premises for a purpose which would give rise to a breach of covenant, it was reasonable for the landlord to refuse
consent to assign.
Application:
Is the intended use of the property by the assignee a use that would breach a restrictive covenant? If so, the landlord may not grant permission.
[If they do and it breaches, need to get protection against the breach – i.e. consent from the PWB (may be tricky) or insurance = affected by the age of the covenant and extent of breach
-> also, solicitor cannot give advice on a insurance as a specified activity and is subject to the general prohibition in s19(1) FSMA]
Crestfort Ltd and ors v Tesco Stores Ltd
Consent – lease contains pre-conditions to alienation?
[2005] EWHC 805 (Ch), where the court held that as a matter of construction, a covenant against underletting without obtaining the landlord’s consent which
imposed conditions that had to be satisfied was to be treated as imposing mandatory pre-conditions and that the purpose of these conditions was to limit the circumstances in which the tenant could properly apply for consent to grant an underlease. In Crestfort, those conditions had not been met. Consent could not be given.
Accordingly the landlord was not under an obligation even to consider the tenant’s application for consent. In Crestfort, the tenant had granted the underlease without obtaining the landlord’s prior written consent and the landlord was successful in its application for an injunction to have the underlease surrendered.
Aubergine Enterprises Ltd v Lakewood International Ltd
The landlord’s solicitors wrote to the tenant’s solicitors, subject to licence, that the landlord had agreed to the disposal ‘in principle’.
The judgment in this case now tells us that it is no longer safe to give consent
‘in principle’ while waiting for the legal documentation because this could be
construed as landlord’s full written consent even before a formal licence (with conditions and a covenant) has been granted.
