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Property case law update: June 2011

Kahlon v Isherwood – 119.5.11 – [2011] EWCA Civ 602 – CoA
Tomlin order – Agreement to grant AST in place of Assured Tenancy – Whether necessary notice requirements complied with.
Held: The content of the Tomlin order was not substantially to the same effect as the required prescribed notice. The relevancy or materiality of each provision of the prescribed notice had to be considered against the purpose of the notice in order to consider whether the notice given was of substantially the same effect.

BDW v JM Rowe – 12.5.11 - [2011] EWCA Civ 548 – CoA
Conditional development contract – Rescission – Validity of notice rescission
Held: (1) As a matter of construction, the right to rescind arose on the failure to comply with a condition and conferred a right to rescind by the service of a notice at any time. (2) The right to rescind being precluded by a party in default of their obligations under the same clause a party was entitled to serve a notice at any time and obliged to continue to comply with their obligations in the meantime. Accordingly continued performance could not be said to be inconsistent with the right to rescind and was therefore not an election to give up the right to rescind. (3) As a matter of construction given the express provision as to defaults that would prevent the exercise of the right to rescind the general principle that a party could not rely on its own breach would not be implied into the contract.
Grand v Gill – 19.5.11 - [2011] EWCA Civ 554 - CoA
Disrepair – Obligation to repair structure – Plaster affected by damp and mould.
Held: Plaster which formed part of walls and ceilings or was applied to the same was not a decorative finish but formed part of the structure for which the landlord was responsible.

Phoenix Property Investors Ltd v Grange Securities Ltd – 5.5.11 - [2011] EWHC 1131 (Ch) – HHJ David Cooke.
Contract for renovation and sale – Non-performance – Repudiation – Standard of works - Refund of part paid purchase price.
Held: The contract for sale subject works included an implied term as to quality of work being required to be to the purchaser’s reasonable satisfaction. The outstanding items on the snagging list taken together were a substantial breach such that the failure to undertake the same amounted to a repudiatory breach. The purchaser was entitled to accept the repudiation, refuse to complete and secure a refund of all payments.

Eaton Mansions (Westminster) v Stinger Compania De Inversion SA – 18.5.11 – [2011] EWCA Civ 607 - CoA
Alterations – No covenant permitting – Headlessee consented – Subsequent withdrawal of consent – Request for consent to new alteration – Freeholder refused – Headlessee claim for trespass.
Held: Absent a qualified covenant permitting alterations the only defence to the headlessees claim was based on estoppel, not consent per se. A headlessee is entitled to protect its position against its freeholder. Accordingly the correct test included consideration whether the freeholder would have consented if asked. The underlessee could not establish any basis for supposing the freeholder would have consented and accordingly had no defence.