Share on LinkedIn Tweet This Share on Facebook Share Tweet Share Property Newsletter October 2017 Welcome to the October edition of the Property Newsletter from Hardwicke. This month, Lina Mattsson looks at prescriptive easements and evidential presumptions, Rupert Cohen reveals his untruth from last month’s unrobed section, and Morayo Fagborun Bennett teases us with her 3 facts, the answers to be revealed next month.We have a number of upcoming seminars. We hope to see you at one of these events:Wednesday, 18 October: Commercial L&T: Messy Endings - LondonLocation: Hardwicke Building, New Square, Lincolns Inn, WC2A 3SBTimings: 17.30-19.15Tuesday, 7 November: Professional Negligence seminar - SurveyorsLocation: Hardwicke Building, New Square, Lincolns Inn, WC2A 3SBThursday, 9 November: Joint event with the PLA, NottinghamLocation: The Herbert Kilpin, 10 Bridlesmith Walk, Nottingham, NG1 2HBTimings: 16:30-20:00Details: Click hereSimon Allison - Editor Activity Report – What we have been up to Peter Petts has been involved in industrial action. Thwarting, rather than taking, it.September, the month of Rupert Cohen’s birth (30th if you must know), has seen Rupert obtain more injunctions than he has had breakfasts (he is not a big eater in the morning). From builders creating a nuisance to tenant’s refusing access; the rights of the worthy (ie his clients) were upheld at every stage. He has also been dipping his toes into franchise law with a substantial dispute with McDonald’s in the offing.John de Waal QC has been considering the merits of a breach of warranty claim in respect of a £4m development and continues to work on a complex solicitors’ professional negligence claim arising out of advice given in relation to the transfer of titles in a valuable residential property in west London.For Alastair Redpath-Stevens, the season has started with quite a mixed bag of short term lettings in breach of covenant; mortgagees in possession; the Crown Estate Paving Commission and easements; enfranchisement teasers; and bridleways and footpaths in the depths of rural Shropshire.Katrina Hanstock has been getting her teeth into advising on a rent to rent scam involving dissolved tenant companies as well as the usual flurry of possession and forfeiture hearings.Cameron Stocks spent a much needed part of September in North Yorkshire with family. When not fly-fishing with his Grandad, Cameron was dealing with various service charge disputes and acting as junior for John de Waal QC in a claim involving misrepresentation in the sale of land subject to an adverse possession claim.Last month Andrew Skelly went part heard in the Leeds District Registry, in a trial relating to an implied periodic tenancy of commercial premises, an implied assignment of that tenancy, and oral variations to its terms. Judgment is awaited. He also successfully represented 31 residents in a claim in the High Court for a declaration pursuant to s.84(2) LPA 1925 that they are entitled to enforce a restrictive covenant.Rupert Higgins has been advising on whether a specific covenant forbidding the uniting of a demise with neighbouring property is caught by s.19 of the Landlord and Tenant Act 1927 mitigating restrictions on tenants’ improvements.Jamal Demachkie has had a busy month with trials on easements, covenants, and the vexing question of when the court should exercise its discretion to set aside a possession order solely for the purpose of granting relief from forfeiture to a mortgagee.Morayo Fagborun Bennett has been engaged in a number of trials involving noise nuisance, cannabis cultivation, the Equality Act and compensation for failure to protect tenancy deposits.Carl Brewin has had a busy September dealing with franchises and enfranchisement, HMOs and the joys of Rent Act tenancies.Daniel Gatty spent a few days in Plymouth for a trial about a mortgage. When not in the west country, he has been advising about breach of trust, rescission of contracts for sale, and various L & T disputes.Lina Mattsson has had a string of cases involving resulting trusts and the right to claim occupational rent. She has also been advising on restrictive covenants, rights of way, and rights to light.Simon Allison has had a month of papers, including drafting dilapidations claims and a Party Wall Act appeal, and advising on issues as diverse as industrial action, dangerous quarry walls, the powers of Urban Development Corporations to override restrictive covenants and the proper operation of ground value rent review provisions.Emily Betts has been advising on a high profile pre-emptive injunction against protestors on both public and private land and also had a two day trial against a high street bank relating to the bank’s failure to provide borrowers with a Home Buyers Report, and as a result they went on to buy a property unaware of its poor condition.And finally, Andy Creer has been in trial over whether the grant of a lease with an earlier commencement date creates a retrospective liability for non-domestic rates (there is no authority on the point), acting for Stagecoach in an injunction, advising on liability following a landslip & looking at frogfish in the Indian Ocean. For those not in the know, this is a frogfish: Comment - Who has to prove what? Prescriptive rights and evidential presumptions Lina Mattsson The fundamental question of the burden of proof is often overlooked in civil litigation; with all parties seeking to call evidence to support their version of events. In cases involving prescriptive rights, this often becomes much more difficult as there are inherent difficulties in proving facts which span more than two decades, and often relate to use of the land by predecessors in title. Evidential presumptions, shifting the burden of proof, will often win (or lose) cases. The decision in Welford v Graham  UKUT 297 (TCC) confirms that, when an easement has been used openly for two decades, there is a rebuttable presumption that it has been enjoyed as of right.Read Lina's full article here. Lina Mattsson: Did you see? You may have missed... Lea v Ward  EWHC 2231 (Ch), 6 September 2017 Interference with easements – Obstruction - Mandatory injunctions - Equally convenient route- Measure of damages The Claimant sought an injunction and damages in nuisance for interference with an express right of way. The court held that the natural meaning of a right of way "over the track or way" was limited to the right of way to the track that was actually in use at the time the right was created. The right of way did not include the right to overhang, swing and manoeuvre vehicles and equipment over the verges; a land owner was entitled to build right up to the boundary of his land and to do so would not interfere with a right of way abutting his land. Although the court found that fencing erected by the defendant had completely obstructed the right of way, there was no evidence of any substantial inconvenience being caused. Nominal damages of £5 were awarded. Having found that the erection of walls and a gate post on the right of way amounted to a substantial interference, the court held that if the defendant agreed to make changes proposed by the court to create an equally convenient route and grant a right of way over that land, the court would make a negative declaration that the claimant could have no right to an injunction and should be satisfied with damages. Cos Services Ltd v Nicholson  UKUT 382 (LC), 03 October 2017Service charges - Insurance premiums - LeasesCarl Brewin appeared for the landlord in the Upper Tribunal. The lessees of a block of flats challenged insurance premiums claimed by the landlord between 2014-2017 in sums between £12,600-£13,500 per year. The FTT held that only sums between £2800-£3000 were recoverable. The UT decided to have a rehearing on appeal. It held that having heard evidence by both parties, it remained a mystery why there was such a discrepancy between the premiums charged to tenants under the landlord’s block policy and the premiums obtainable from other insurers on the open market. It was mystery which the landlord had been unable to explain. The UT held that s 19 of the 1985 Act is necessarily a two-stage test: did the landlord act rationality in its decision making when incurring the costs and is the sum being charged, in all the circumstances, a reasonable charge. Applying the two stage test, the UT held that the insurance premiums being charged by the landlord to the tenants were excessive, in the sense that considerably lower premiums for similar protection could have been obtained elsewhere. The landlord had therefore failed to satisfy the UT that the amounts sought to be charged to the tenants were “reasonably incurred” and the appeal was dismissed. Cheerupmate2 Ltd v Calce  UKUT 377 (TCC), 20 September 2017Ground Rent - Arrears - Forfeiture - Notices - Use of old formThe landlord forfeited a long lease in respect of unpaid ground rent from 25 March 2010 to 25 March 2015, amounting in total to £11. The same day the landlord applied to close the tenant’s leasehold title. The tenant objected and the matter was referred to the FTT. The FTT found, amongst other things, that the rent demand notice (pursuant to s.166 Commonhold and Leasehold Reform Act 2002) which had been served by the landlord was invalid and that the forfeiture was therefore ineffective. The UT upheld that decision. The section 166 notice consisted of a printed form with handwritten additions. The defect in the notice was that one of the notes to the leaseholder was in an out-of-date format because it followed the pre-2011 amendment wording. The wording was part of the explanatory notes for the leaseholder rather than the notice itself; the notes for the Tenant are an important element in the notice and are the subject of the regulations that prescribe the form of the notice. The UT noted that the meaning of the two notes was identical, but the pre-2011 wording with its double negative was difficult to understand. The amended wording was much clearer. The defect was the use of wording which Parliament has specifically decided should not be used. Further, by virtue of sub-section 166(4), the rent was not due until a valid s.166 compliant demand was served, with the effect that time did not start running for the purpose of the forfeiture provision in the lease until that time. "Hardwicke Unrobed" - Get to know us better Each month, a member of the Hardwicke property team gives us 3 facts about themselves. But only 2 are true. Can you guess which 2? Below, Morayo Fagborun Bennett gives us her 3 facts – the answers will be revealed next month. But first, Rupert Cohen explains which fact was false last month:Rupert Cohen explains which fact was false last month: Rupert failed grade 1 piano; Rupert used to play roller hockey for the “Hammersmith Hammers” under-9s; Rupert is the slowest man to have completed the Uganda marathon in its history...... Rupert explains:Numbers 1 and 3 are true. I did fail grade 1 piano but got grade 1 recorder (specialist piece: Frère Jacques or “Pharaoh Jack-a” as he was known). I never played for the Hammersmith Hammers. I was an unused substitute twice before sulking off and packing it in. The cut off time (beyond which you were disqualified for being too slow) was 7 hours; I completed it in 6hr 58 min (it did involve 14 hills and 42 degree heat so time, whilst being tragically slow, isn’t as disgraceful as it might be). Morayo Fagborun Bennett Morayo Fagborun Bennett’s facts: I ran the London Marathon for The Brain Tumour Charity. I once ran the 100 meters barefoot on sports day. I once went to a black tie Halloween party dressed as a cat. Contact us The Propety Newsletter is edited by Simon Allison. If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team: Deborah Anderson, Practice DirectorJames Duncan-Hartill, Senior Practice ManagerPatrick Sarson, Practice ManagerClarissa McInally, Practice ManagerTo find out more about our Property team and their work, visit the Property page on our website.The Property Newsletter is edited by Simon Allison. Comments or queries about this newsletter? Please get in touch with him!