Monday, January 5th, 2009
A landlord has lost his appeal against a decision by a Leasehold Valuation Tribunal that he failed to consult tenants properly about work carried out at a block of flats.
It means he is now limited in the amount he can recover through service charges.
The tribunal was told that the landlord had instructed a managing agent to oversee work at the flats. The agent wrote to the tenants to inform them about the project and to notify them that the estimates for carrying out the work were available at its office for them to inspect.
The letter to the tenants didn’t include copies of the estimates. The tenants’ solicitor wrote to the agent saying he had failed to comply with the statutory requirement to consult with tenants under the Landlord and Tenant Act 1985. The agent responded by sending copies of the estimates to the solicitor and then proceeded with the works.
Later, the solicitor wrote to the agent saying the tenants objected to the agent appointing a sole trader to carry out the work. It then turned out that the work was unsatisfactory and additional repairs had to be carried out.
The case came before the Leasehold Valuation Tribunal which held that the landlord had failed to comply with the consultation requirements and so there was a limit to the amount he could recover from the tenants through service charges.
The landlord appealed to the Lands Tribunal saying he had complied with the consultation requirements by virtue of the agent having written to the tenants informing them that copies of the estimates were available for inspection at its office. He further submitted that even if he had failed to comply, it was reasonable to dispense with the requirement because there was no evidence to suggest the outcome would have been any different if the tenants had seen the relevant estimates.
However, the Lands Tribunal held that the landlord had failed to comply with the consultation requirements because the estimates had only been available at the agent’s offices which were more than eight miles away from where the tenants lived.
The Act required that such documents should be displayed in a convenient and obvious place where they would be likely to come to the attention of the tenants quickly and easily. Placing the documents more than eight miles away did not meet that criteria and therefore there had been no full consultation period.
For advice on all commercial property matters contact Paul Slot.
Monday, January 5th, 2009
A group of neighbours on a housing development have successfully taken legal action to prevent the building of a three-storey extension which they feared would spoil the view from their homes.
The houses on the development had been sold subject to two restrictive covenants. The first was that homeowners could not erect buildings without the approval of the management company; the second prevented homeowners doing anything that would annoy or create a nuisance to other people on the estate.
One homeowner was then granted planning permission to build a three-story extension. He also obtained approval from the management company on condition that the development would be in keeping with existing properties and the boundaries would not be altered.
However, the neighbours objected because they felt the extension would spoil their views over a nearby river and so breach the covenant by causing an annoyance. The homeowner argued that the permission granted by the management company should take priority over the nuisance and annoyance element of the covenant and so the development should be allowed to go ahead.
The court, however, ruled in favour of the neighbours. The judge held that there was no reason why both elements of the covenant should not apply so that a development could only go ahead if it had the approval of the management company and did not cause a nuisance to others on the estate.
The next issue to resolve was whether or not the interference with the scenic views would cause annoyance. The judge held that most reasonable people would say that it would indeed cause annoyance within the meaning of the covenant and the development should therefore not be allowed to go ahead.
For guidance all property matters and property disputes contact Paul Slot who will be happy to help you.
Monday, January 5th, 2009
The Lands Tribunal has held that windows are part of a property’s structure under the Housing Act and it was therefore reasonable for a landlord to include the cost of repairing them in the tenant’s service charge.
The case involved Sheffield City Council and one of its tenants. Under the terms of the lease, the authority had covenanted to repair the exterior of the building and also to carry out improvements if it thought them to be desirable.
The reasonable costs of such work would be payable by the tenant through the service charge. The authority informed the tenant that it intended to replace the windows in her block of flats to improve the thermal comfort and lower heating costs. She was given an estimate of the cost of the work.
The tenant then challenged the reasonableness of the plan under the Landlord and Tenant Act 1985.
The Leasehold Valuation Tribunal (LVT) held that the windows weren’t part of the exterior and therefore the authority had no obligation to repair or renew them. It also found that the reasonable cost of carrying out the work was less than the authority had suggested and should be reduced.
The authority appealed to the Lands Tribunal which held that under the Housing Act 1985, external windows were part of both the exterior and the structure of the building to which they belonged. The tribunal was wrong therefore to conclude that the reasonable cost of carrying out the work could not be recouped by the authority as part of the service charge. However, the tribunal had been right to say that the amount the authority wanted to charge was not reasonable and should be reduced.
The authority therefore won its appeal as far as its right to carry out the work was concerned but lost in relation to the reasonableness of the amount it wanted to charge the tenant. The LVT’s order reducing the figure was allowed to stand.
Monday, December 22nd, 2008
A film company which caused damage to a person’s home during the course of its work has been ordered not only to cover the cost of repairs but also to pay him compensation for the inconvenience he suffered.
It must also pay the full cost of repairing a driveway even though the repair work would make the driveway better than it was before.
The company was using the homeowner’s property as a location and agreed to indemnify him for any damage caused by its staff while they were filming. It then turned out that damage was caused to both the inside and the outside of the property as well as to the driveway which needed to be resurfaced.
The home-owner submitted that he was entitled to compensation for his non-pecuniary loss – that is, loss of a non-financial nature – including the inconvenience caused to him by having to deal with the problem of rectifying the damage.
The company argued that the cost of repairing the drive should be reduced to reflect the fact that the repairs would put it in a better condition than it was before it was damaged.
The High Court, however, rejected this saying that as the driveway had been in good condition before the damage occurred, the company could not be given credit for any improvement that might result from carrying out the repair work.
The court also held that the inconvenience caused to the homeowner had interfered with his enjoyment of the property and it was right that he should be compensated for that as well as the inconvenience he would experience while the repairs were being carried out.
If you have a claim for damages talk to Steven Kinch.
Friday, December 19th, 2008
The homebuilding industry has agreed to draw up a code of conduct and a redress scheme for consumers following a report by the Office of Fair Trading (OFT) saying that the public needs more protection.
The report contained several positives for the industry saying that it was broadly competitive and that barriers to entering the market were quite low.
However, there were some issues affecting homebuyers which needed to be addressed.
These included faults in new homes, delays to moving in dates and “issues around the sales process including reservation fees, the clarity of information provided to homebuyers and potentially unfair terms and conditions in contracts”.
The industry has responded quickly to the findings by agreeing to form a representative body to draw up a code of conduct and consumer redress scheme. It’s hoped the measures will be in place by March 2010. If they are not, the OFT will recommend the introduction of a statutory redress mechanism which would be funded by an industry levy. It would be able to award compensation to homebuyers for delays, contract shortcomings or failings in the sales process.
The OFT Chief Executive John Fingleton, said: “We have found the homebuilding market to be generally competitive, with no evidence that individual homebuilders have the ability to restrict supply in order to inflate prices or to hoard land for anti-competitive reasons.
“However, we have concluded that homebuyers need more protection when buying a new home and we have worked hard with the industry to help it develop a new approach to self-regulation that will improve consumer protection.”
The voluntary code of conduct will be produced by the Cross Industry Steering Group which is made up of the Construction Employers Federation (NI), Council of Mortgage Lenders, Federation of Master Builders, Home Builders Association, Home Builders Federation, Homes for Scotland, LABC New Home Warranty, National House Building Council, Premier Guarantee, Retirement Housing Group and Zurich Building Guarantee.
For advice on property development contact Paul Slot.
Monday, December 15th, 2008
In order to increase consumer protection in house buying, the Government has introduced regulations requiring all estate agents dealing with residential property in the UK to belong to a redress scheme. The new rules apply from 1 October 2008 and require all estate agents to belong to a recognised Ombudsman scheme.
Two existing schemes, operated by the Ombudsman for Estate Agents and the Surveyors Ombudsman Service, have already been approved and a further scheme is under consideration. Estate agents in England and Wales who offer Home Information Packs are already required to belong to an approved redress scheme.
The measures will give the Office of Fair Trading greater powers to remove rogue estate agents from the market and will give greater investigatory powers to enforcement officers.
Estate agents who fail to register will be subject to a fine and may be banned from operating as estate agents if their transgressions continue.
Wednesday, December 10th, 2008
People selling a house which has been on the market for more than a year must now ensure that they have an Energy Performance Certificate (EPC) for the property.
EPCs are an integral part of Home Information Packs, which were introduced in stages for houses of different sizes last year and became a legal requirement for all sales last December. People who had their house on the market before the respective deadlines are still exempt from having to provide a HIP but they do now have to provide an EPC.
They became a legal requirement on 1st October for anyone building, selling or renting out a home. The EPC rates the energy efficiency of the property and grades it from A to G.
The housing market has, of course, been very slow over the last year and it’s thought that thousands of people who have had a property on the market for more than a year may not be aware that they now need an EPC. However, they risk being fined if they try to market the property without one.
Please Sophie Warren for your fixed price EPC and Home Information Pack.
Monday, December 8th, 2008
Covenants containing restrictions on the use or development of land can cause problems between neighbours.
Recently, a couple obtained planning permission to build a bungalow on a corner of their land.
Their property was subject to a covenant on development, which prevented them from building a residential property on it without the agreement of their neighbour. This was asked for and denied. The neighbour was of the view that the occupants of the bungalow would have use of the surrounding garden land and this might interfere with her privacy. She was unmoved by the argument that the owners of the existing property could use the land themselves without a bungalow being built and this would have the same effect on her privacy but would not breach the restrictive covenant.
The couple applied to the Lands Tribunal to have the covenant lifted. It refused permission and so they appealed to the Court of Appeal.
The Court upheld the decision of the Lands Tribunal. In its view, the value of the covenant to the neighbour was that her privacy was protected not only by prevention of the building, but also because of the potential use of the surrounding land as a garden. It was not in point that the benefit to her derived from the covenant restricting construction of the building rather than restriction of use of the land in question as a garden.
Says Steven Kinch, “In this case, the covenant prohibited what was, in effect, a lawful use of the land as a garden. The prohibition was for occupiers of the proposed bungalow, not the couple who owned the land. Their use was not restricted, but the protection operated by prohibiting the construction of the bungalow.”
Tuesday, December 2nd, 2008
Landlords and developers now have to provide Energy Performance Certificates (EPCs) when they build, sell or rent out flats and commercial properties of all sizes.
EPCs have been required since 6th April this year for all new homes being built and also for the construction, sale or rent of commercial properties with a floor area of more than 10,000sq metres. On 1st July, the threshold was reduced to 2,500sq metres and now, since 1st October, the regulations apply to all remaining buildings apart from a few minor exceptions.
The changes place new responsibilities on anyone constructing a new building or selling or renting out an existing property.
For example, when a new building is completed, the person responsible for the construction must obtain an EPC and provide it to the owner. This is obligatory under Building Regulations. The same thing applies if a building is converted into more or fewer units and there are changes to the heating and hot water provision or to the air conditioning system.
When selling an existing building, the owner will have to provide a certificate for all prospective buyers. Landlords will have to do the same for prospective tenants of commercial properties. However, there is no need to provide a certificate for an existing tenancy; only for a new one. Commercial property certificates are valid for 10 years and if they are still in date when a tenancy changes there is no need to obtain a new one.
Landlords letting out rented accommodation must also provide EPCs for prospective tenants if the property concerned is self-contained. The certificates are not required for situations where the tenant rents a room and shares facilities.
Some buildings are exempt from the regulations but not many. EPCs are not required for places of worship, stand alone buildings of less than 50sq metres (except for homes), temporary buildings which won’t be used for more than two years and buildings with a low energy demand such as barns and farm outbuildings. In some circumstances, buildings due to be demolished may be exempted.
For advice on all commercial property and property developing contact Paul Slot.
Monday, December 1st, 2008
A recent boundary dispute has illustrated the desirability of ensuring that when a property is sold, the description of it in the conveyance is as clear as possible.
The dispute was over a farmhouse and adjacent fields, which were at one time under common ownership. In 1988 they were sold separately, the farmhouse being sold first and then the fields. The original owner had built a fence between the farmhouse and the fields. Regrettably, the plan, which was marked ‘for information only’, showed the fence as lying within the boundary of the property attaching to the farmhouse. The written description of the property conveyed with the farmhouse was inadequate, but the vendor (who at that time still owned the fields) had covenanted to maintain the fence. This made no sense if the fence were no longer on the vendor’s property.
The subsequent owner of the fields sought to have a declaration made by the court that her land included the land on which the fence stood and to have the copies of the plans filed at the Land Registry altered to show the fence as part of her property, not the farmhouse land. The Court of Appeal agreed that the fence stood on her land and that the boundary shown in the plan should be altered to show her ownership of the disputed land.
The plan of a property is normally only indicative and the extent of the true title is contained in the description of the property. It is therefore very important that conveyances contain accurate and comprehensive descriptions of the property being conveyed and also that documents of title are examined and compared with the filed plan to ensure that any anomalies can be resolved.
We can assist you to ensure that your interests are protected in any property transaction. Contact Steven Kinch for legal assistance with your property problem.
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