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Law Society practice note:
Registration applications - new Land Registry procedures

From 3 August 2009 Land Registry will introduce new procedures to deal with early completion. The Law Society has opposed the introduction of this policy and our views have been supported by the Council for Licensed Conveyancers. The Law Society has prepared an interim practice note on the changes and invite feedback to: earlycompletion@lawsociety.org.uk.

Read the Land Registry early completion practice note

Events

Discounts
Cases

*R (on the application of Friends of the Earth and others) v Secretary of State for Energy and Climate Change

Warm homes and energy conservation – Fuel poverty. Court of Appeal, Civil Division: The claimants' appeal against the dismissal of their application for judicial review in respect of the Secretary of State's fulfilment of his duties under the Warm Homes and Energy Conservation Act 2000 was dismissed. The judge had been correct to emphasise the flavour of the statutory language as being that of 'effort' to achieve targets, rather than of a guarantee that targets would be reached; and, on the true construction of the Act, it was permissible for the Secretary of State to approach the question of reasonable practicability as he had by reference to current budgetary constraints.

Citation: [2009] All ER (D) 331 (Jul)
Alternative citations: [2009] EWCA Civ 810
Hearing date: 30 July 2009
Court: Court of Appeal, Civil Division
Judge: Sir Mark Potter P, Maurice Kay and Lloyd LJJ
Representation: Michael Fordham QC and Tom Richards (instructed by Friends of the Earth Rights and Justice Centre) for the claimant. Jason Coppel and Joanne Clement (instructed by the Treasury Solicitor) for the Secretary of State.
Keywords: Warm homes and energy conservation – Fuel poverty – Duty to prepare and publish strategy setting out policies for ensuring efficient use of energy that as far as reasonably practicable ensures people do not live in fuel poverty – Claimants seeking declaration that Secretary of State unlawfully failing to perform duties required under statute – Construction of statutory provision – Definition of 'reasonably practicable' - Warm Homes and Energy Conservation Act 2000, sections 1, 2.

Summary: The judgment is available at: [2009] EWCA Civ 810
According to its long title, the Warm Homes and Energy Conservation Act 2000 was an Act to require the Secretary of State to publish and implement a stra tegy for reducing fuel poverty; to require the setting of targets for the implementation of that strategy; and for connected purposes. The Act was concerned with 'fuel poverty', as defined in section 1(1) of the Act. Section 1(2) empowered the Secretary of State to make regulations to define 'lower income', 'reasonable cost' and 'warm'.
Section 2 of the Act provided that it 'shall be the duty of the appropriate authority to prepare and publish, before [23] November 2001], a strategy setting out the authority's policies for ensuring, by means including the taking of measures to ensure the efficient use of energy, that, as far as reasonably practicable, persons do not live in fuel poverty'. Pursuant to section 2(1) of the Act, the UK Fuel Poverty Strategy (the Strategy) was published in November 2001.

It was common ground that the Strategy complied with the requirements of section 2(2) of the Act. Its focus was on 'the fuel poor household' and adopted a widely accepted definition of that concept (see [6] of the judgment for the targets required by section 2(2)(c) and (d)). The claimants applied for judicial review seeking a declaration that the Secretary of State was unlawfully failing to perform his duties under section 2(5) and (6). The challenge was not to the strategy, but to an alleged failure to implement the strategy. It was common ground that the Act was a source of governmental obligations; the fundamental dispute was as to their content and extent. The issue concerned, inter alia, the proper construction of the Act. The judge found in favour of the Secretary of State on most of the construction issues. The claimants appealed.

Although the primary focus of the appeal related to the words 'as far as reasonably practicable' in section 2(2)(d), there was a prior question as to the obligation to which those words of limitation attached, namely, whether the duty on the Secretary of State was simply to try to achieve the relevant result. In relation to reasonable practicability and budgetary constraint, the issues arose in particular as to (i) whether it was necessary first to identify the minimum which had to be done to fulfil a statutory duty so that then the budget had to flow from that; (ii) whether, as a matter of principled statutory construction, the 'reasonably practicable' qualification did not give the Secretary of State a discretion as to what was to be achieved, but absolved him of a breach of duty if it was simply not feasible to ensure that nobody lived in fuel poverty, or if the costs of so doing were out of all proportion to the benefits.

The appeal would be dismissed.

(1) It behoved a court to proceed with caution so as to ensure that softer obligations were not construed in a more prescriptive manner than their language and context required. On its true construction, the essential obligation imposed by section 2 of the 2000 Act was in terms of effort or endeavour (see [20] of the judgment).

The judge had been correct to emphasise the flavour of the statutory language as being that of 'effort' to achieve targets, rather than of a guarantee that targets would be reached (see [15] and [20] of the judgment).

(2) The authorities upon which the claimants relied simply demonstrated the relevance of current resources when considering reasonable practicability, whilst acknowledging that there was a minimum standard below which the authority could not drop. That had been the approach taken by the judge in the instant case, and the judge had been correct, on the authorities, to reject the submission that it was impermissible for the Secretary of State to approach the question of reasonable practicability as he had by reference to current budgetary constraints (see [30] of the judgment).

R (on the application of Calgin) v Enfield London Borough Council [2006] 1 All ER 112 explained.
(3) The cost of eradicating fuel poverty was dependent upon factors beyond the direct control of the Secretary of State, in particular, the cost of energy, and Parliament could not have intended to impose upon him an obligation to meet that cost without reference to the discretion which would usually be accorded in fixing spending priorities and allocating resources. The meaning of a test of reasonable practicability could vary between one statutory context and another. Accordingly, the 'grossly disproportionate' approach did not apply in the instant case (see [35]-[37] of the judgment).

(4) Having regard to the unanticipated scale in fuel prices, the Secretary of State was not in error if he considered reasonable practicability at least to some extent by reference to departmental budgets. Section 2 did not require or permit the Secretary of State to spend in a particular year vastly more on the eradication of fuel poverty than had been made available for that purpose. It was also relevant that the duties under section 2 were imposed on the Secretary of State and not on the Treasury or government as a whole, and that it was the Secretary of State who was the defendant in the application for judicial review (see [46] of the judgment).

R (on the application of Q) v Secretary of State for the Home Department [2003] 2 All ER 905 considered.

(5) Where, as in the instant case, there was no challenge to the lawfulness of the policy decisions taken, apart from the contention that the government had failed to comply with its duties under section 2, there had to be room for difference of opinion as to how one could best go about the implementation of such policy. When one looked at section 2(5) of the Act, it was clear that the defendant was only obliged to take such steps 'as in their opinion' are necessary in order to implement the Strategy. Absent a challenge to the rationality of particular decisions, taken in compliance with the Act, it was not open to the court to adjudicate on the merits of the opinions so formed (see [50]-[51] of the judgment)

Decision of McCombe J [2008] All ER (D) 232 (Oct); affirmed in part.
Vanessa Higgins, barrister
 
 
Stern v Lawnpond Ltd

Appeal – Rent assessment committee. Queen's Bench Division, Administrative Court: The London Rent Review Committee were correct in deciding that a landlord and tenant, in the context of a rent increase under an assured periodic tenancy, had not reached a binding agreement whilst waiting for the outcome of an appeal on a previous notice issued under section 13(4) of the Housing Act 1988.
 
Citation: [2009] All ER (D) 320 (Jul)
Alternative citations: [2009] EWHC 268 (Admin)
Hearing date: 21 January 2009
Court: Queen's Bench Division, Administrative Court
Judge: Judge Stewart QC sitting as a judge of the High Court
Representation: The appellant appeared in person.Jamal Demachkie (instructed by Richard Pearlman & Co) for the respondent.
Keywords: Appeal – Rent assessment committee – Determination of fair rent – Tenant served with first notice of increase in rent – Rent assessment committee finding notice invalid – Tenant served with second notice – First notice found valid on appeal – Committee rejecting tenant's contention that second notice constituted agreement between parties in respect of first notice – Whether second notice constituting binding agreement regardless of outcome of appeal on first notice.

Summary: The judgment is available at: [2009] EWHC 268 (Admin)
The appellant was a tenant under an assured periodic tenancy in a property belonging to the respondent landlord. In 2005 the respondent served a notice under section 13(2) of the Housing Act 1988, as amended, proposing a new monthly rent of £1,495 in place of the existing rent of £780 per month. The appellant referred the notice under section 13(4) of the 1988 Act to the London Rent Assessment Committee (the committee), who found that the notice was invalid. The respondent appealed and the matter was remitted to a differently constituted committee. Meanwhile the respondent served a second notice proposing to increase the rent to £3,135 per quarter. The committee subsequently found the first notice valid.

The appellant appealed on the basis that the committee had no jurisdiction to determine the rent because the parties had reached agreement since the service of the first notice of increase. The appellant contended that a legally binding agreement had been reached to increase the rent to £1,045 per month or £3,135 per quarter as a compromise figure to settle the dispute between them as to the amount of the rent increase. He further contended that he had paid the increased rent and that the agreement had been confirmed by the respondent's solicitors. The respondent contended that there had never been a binding agreement and even if that had been the case, that did not automatically deprive the committee of jurisdiction or relieve it of its obligation to determine rent. The committee rejected the appellant's appeal. The committee assessed the rent at £1,279 per calendar month. The appellant appealed.

The issue was whether the second notice constituted a binding agreement between the parties regardless of the outcome of the appeal on the first notice.

The appeal would be dismissed.

On the evidence, no binding agreement had been reached by the parties. The offer of £3,135 per quarter was only capable of being accepted assuming that the appeal on the first notice failed. On its face it offered a quarterly rent, not a monthly rent. It was impermissible to equate a rent in a quarterly tenancy with a rent of one third of the amount on a monthly tenancy.

The decision of the committee would be upheld.

Tara Psaila, barrister

Makram Estafnous v London & Leeds Business Centres Ltd

Estate agent - Commission. Chancery Division: In a claim by an estate agent for commission payable on the sale of an interest in land held by a company, it was held that a sale of shares in the company was not the same as sale of the interest in land. In the instant case, although the claimant estate agent had introduced the purchasor to the company, he was not entitled to be paid commission.

Citation: [2009] ALL ER (D) 286 (Jul)
Alternative citations: [2009] EWHC 1308 (Ch)
Hearing date: 15 June 2009
Court: Chancery Division
Judge: Christopher Nugee QC sitting as a deputy judge of the High Court
Representation: Stephanie Tozer (instructed by Salfiti LLP) for the claimant.Ben Shaw (instructed by Magrath LLP) for the defendant.
Keywords: Estate agent – Commission – Entitlement – Agreement to pay commission on introduction of a purchaser if interest in land sold – Company owning property – Purchaser negotiating to buy shares in company rather than interest in land – Whether estate agent entitled to commission.

Summary: The judgment is available at: [2009] EWHC 1308 (Ch)
The claimant was an estate agent. The defendant company held the lease of a London office building. The claimant offered to introduce a purchasor to the defendant, who would pay £19m for the building, in exchange for an agreed commission. The parties signed a contract under which the commission was to be payable on completion of the sale of the property. The claimant did introduce a purchasor, who negotiated with the defendant. The purchasor offered to buy shares in the defendant that owned the building, rather than buying the lease of the property itself from the defendant. That offer was accepted, and the directors of the defendant inserted another company into the corporate structure above the defendant. That company then sold shares in the defendant to the purchasor for a consideration of £15.6m. The defendant denied that the transaction was a sale of the building, and consequently did not pay the claimant the agreed commission. The claimant issued proceedings to recover the commission.

The defendant denied that the claimant had introduced the purchasor, and contended that there had been no sale of the property.

The claim would be dismissed.

On the facts, the defendant had introduced the purchasor to the defendant. There was no doubt that the agreement gave the purchasor control of the building. However the purchase of shares in a company that owned land was self-evidently a different transaction from the purchase of land. There was a clear difference between a contract where a company agreed to part with an asset and a contract where a company agreed for itself to be sold. The agreement between the claimant and the defendant provided for commission only if the property was sold. Since there was no sale of the property, the claimant was not entitled to commission (see [42]-[56] and [59]-[66] of the judgment).
Freedman v Union Group plc [1997] 11 EG 28 considered; Levers (Trading as Paul & Co) v Dunsdon 206 Estates Gazette 979 considered; Allen v Anderson [1969] NZLR 951 , NZ CA considered; Scott v Martin [1987] 2 All ER 813 considered.

Edward Cole, barrister
Published date: 28/07/2009
 
*Mayor and Burgesses of the London Borough of Hammersmith and Fulham v Alexander-David
Landlord and tenant - Tenancy. Court of Appeal, Civil Division: Where a local housing authority had served a notice to quit on the defendant, then aged 17, and had commenced possession proceedings against her, the district judge had erred in making a possession order since, inter alia, the service of the notice to quit on the defendant had not been sufficient to terminate the tenancy. Moreover, schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 applied to the tenancy granted to the defendant.

Citation: [2009] All ER (D) 17 (Apr)
Alternative citations: [2009] EWCA Civ 259
Hearing date: 1 April 2009
Court: Court of Appeal, Civil Division
Judge: Waller, Scott Baker and Sullivan LJJ
Representation: Kelvin Rutledge (instructed by Michael Cogher) for the authority. Kerry Bretherton (instructed by Duncan Lewis & Co) for the defendant.
Keywords: Landlord and tenant – Tenancy – Agreement – Claimant local housing authority granting minor tenancy of premises – Authority subsequently serving notice to quit and commencing possession proceedings – Judge ordering defendant to give up possession – Whether authority holding premises on trust for minor – Whether authority wrong to serve notice to quit – Whether judge erring – Law of Property Act 1925 – Housing Act 1985 – Trusts of Land and Appointment of Trustees Act 1996, schedule 1.

Summary: The judgment is available at: [2009] EWCA Civ 259
Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996, so far as material, provides: '(1) Where after the commencement of this Act a person purports to convey a legal estate in land to a minor, or two or more minors, alone, the conveyance -- (a) is not effective to pass the legal estate, but (b) operates as a declaration that the land is held in trust for the minor or minors (or if he purports to convey it to the minor or minors in trust for any persons, for those persons). (2) Where after the commencement of this Act a person purports to convey a legal estate in land to -- (a) a minor or two or more minors, and (b) another person who is, or other persons who are, of full age, the conveyance operates to vest the land in the other person or persons in trust for the minor or minors and the other person or persons (or if he purports to convey it to them in trust for any persons, for those persons). (3) Where immediately before the commencement of this Act a conveyance is operating (by virtue of section 27 of the Settled Land Act 1925) as an agreement to execute a settlement in favour of a minor or minors -- (a) the agreement ceases to have effect on the commencement of this Act, and (b) the conveyance subsequently operates instead as a declaration that the land is held in trust for the minor or minors.'

The defendant applied to the claimant local housing authority for accommodation under part 7 of the Housing Act 1996, when she was aged 16. The authority accepted that it had a duty under section 193(2) of the 1996 Act to secure that accommodation was available for her. On 25 June 2006, it discharged that duty by entering into an agreement with her, which gave her a tenancy of the premises (the agreement). The agreement referred to the parties to the agreement as 'the landlord' and 'the tenant', respectively. The defendant moved into the premises. The following year, one of the authority's housing officers wrote to the defendant about various complaints that had been received from other residents. Those complaints were not resolved and consequently, the authority decided to terminate the agreement and recover possession. On 14 September 2007, the authority served a notice to quit addressed to the defendant by placing the notice through the letterbox at the premises in accordance with clause 2 of the agreement. Possession proceedings were commenced by the authority. By the time a formal defence was served the defendant had ceased to be a minor. The district judge struck out the defence and ordered the claimant to give up possession of the premises. The defendant appealed against the district judge's decision.

She submitted that: (i) in entering into its standard form tenancy agreement with her, the authority had purported to grant her a legal estate with the consequence that, in accordance with para 1(1) of schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), the agreement had not been effective to grant her a legal tenancy, and operated as a declaration by the authority that it held the premises on trust for her; and (ii) as a trustee holding the premises on her behalf, the authority could not serve a notice to quit. She therefore submitted that the district judge had had no jurisdiction to make the order for possession. Consideration was given to the Law of Property Act 1925 and the Housing Act 1985.

The appeal would be allowed.

(1) A declaration by an authority that it held its property on trust for a third party would, at least arguably, be a disposal of that property for the purposes of section 32 of the 1985 Act. Authorities might, in principle, grant tenancies to minors that were effective in equity. A landlord who had full capacity to grant a legal tenancy, and who granted a tenancy without any express qualification to the effect that something less than a legal tenancy was being granted, could not subsequently say that what he had granted was not a legal tenancy, but an equitable tenancy. A landlord did not elect to grant an equitable tenancy; such a tenancy arose in specified circumstances, recognised by equity (see [19], [22] and [30] of the judgment).

The 1925 Act did not prohibit the grant by the authority of a legal estate to the defendant, it merely prevented her from holding such an estate. The authority had entered into one of its standard form tenancy agreements with the defendant which would normally be construed as the grant of a legal estate in the premises. The agreement between the defendant and the authority had been in the authority's standard form for creating legal tenancies with its adult tenants. If the agreement had referred to a trustee, that would have been a clear indication that the authority had not been purporting to convey a legal estate. There would therefore be no need for TOLATA to declare that the agreement was to 'operate as a declaration that the land is held in trust' because the agreement in referring to a trustee would itself have included such a declaration. In all the circumstances, schedule 1 to TOLATA applied to the tenancy that had been granted to the defendant (see [16], [24]-[26] and [30] of the judgment).

Kingston upon Thames Royal London Borough Council v Prince (1993) 31 HLR 794 considered.
(2) Describing an agreement as an agreement to grant a licence would not suffice to avoid the creation of a tenancy if an authority allowed an applicant to have exclusive possession of residential premises for a term, and did not provide any attention or services (see [37] of the judgment).
In the instant case, since the authority had held on trust for the defendant the property for a long period, it could not lawfully destroy the subject matter of the trust by serving notice to quit on her. The authority had been both the lessor and trustee. In those circumstances, the service of the notice to quit only on the minor beneficiary of the trust had not been sufficient to terminate the tenancy that had been held by the authority as trustee on the defendant's behalf (see [31] and [35] of the judgment).

Street v Mountford [1985] 2 All ER 289 considered.

Per Curiam: It is important that the inability of a minor to hold a legal estate is expressly recognised, and that any agreement with a 16 or 17-year-old expressly states that because the applicant is a minor the authority is not granting a legal estate but is instead securing that accommodation is available by granting something other than such an estate.

Jade Campbell, barrister
Published date: 24/07/2009
 
London Development Agency v Nidai and others

Licence - Licence to occupy land. Chancery Division: In a claim for possession of two commercial properties, it was held that the holder of a licence over two properties had no title to grant a lease. Accordingly, the claimant was granted possession of the two properties, and the holders of the licences were evicted.

Citation: [2009] All ER (D) 210 (Jul)
Alternative citations: [2009] EWHC 1730 (Ch)
Hearing date: 14 July 2009
Court: Chancery Division
Judge: Sarah Asplin QC sitting as a deputy judge of the High Court
Representation: John McGhee QC (instructed by Eversheds LLP) for the agency.Johanna Boyd (instructed by Grant Saw) for N.Sylvester Unigwe (instructed by Joves Solicitors) for S.
Keywords: Licence - Licence to occupy land – Licence distinguished from tenancy – Permission to build commercial premises – Whether permission amounting to a lease or a licence – Holder of licence purporting to grant a lease – Whether agreement binding on successor in title – Protection from Eviction Act 1977, section 5.

Summary: The judgment is available at: [2009] EWHC 1730 (Ch)
The Earl of Dartmouth owned land in Lewisham, including land over the river Quaggy. In 1922, B Ltd obtained permission to build two commercial premises on the land. This permission was obtained in three agreements between B Ltd and the relevant local authority, and the Earl. In two of the agreements B Ltd was described as the licensee of the land, while in the third it was described as the owner. Subsequently B Ltd built the premises on the land, and purported to grant leases to the defendants, who occupied the premises. The land was purchased by the claimant company from the Earl in 2000. The claimant seeks possession of the two commercial premises, which are now occupied by the defendants.

The claimant submitted that Bentley had the benefit of a licence only, which created no interest over the land in question. As a result Bentley had no title to grant leases to the defendants, despite having purported to do so. A licence, being personal in nature, cannot bind a purchaser and accordingly none of the agreements could bind the claimant. The defendants argued that although the agreements are not expressed to be leases, they had the character of, and were in fact, leases. Additionally, the defendants had not been served with notice to quit in accordance with section 5 of the Protection from Eviction Act 1977, and allowing the claim would be contrary to the Human Rights Act 1998 to deprive the defendants of their property in this case.

The claim would be allowed.

(1) Whether or not it was expressed as such, an agreement was a lease if the circumstances and the conduct of the parties indicated that what had been intended was that the occupier should be granted exclusive possession at a rent for a term with a corresponding interest in the land which created a tenancy (see [46] of the judgment).

In the instant case, it was impossible to construe the agreements as having been intended to create an interest in land, and to grant exclusive possession of it. The three agreements had been licences, and accordingly B Ltd did not have an interest in land which entitled it to grant the leases to the defendants. As such, the purported leases could not bind the claimant (see [47] and [51] of the judgment).

Street v Mountford [1985] AC 809 applied.

Although the defendants had not been served with a notice under section 5 of the 1977 Act, they were not entitled to protection under it as the premises in issue were commercial, not domestic. Neither was the conduct of the claimant incompatible with the Human Rights Act 1998, which could not in this case be used to defeat a proprietary or contractual right to possession (see [37]-[41] of the judgment).

Harrow London Borough Council v Qazi [2004] 1 AC 983 distinguished.

Edward Cole, barrister
Published date: 21/07/2009
 
*Jones v Kernott

Trust and trustee – Constructive Trust. Chancery Division: The court gave an explanation of existing case law on beneficial interests and whether the court might impute the parties with a common intention and whether the courts might assess what was fair and just in the circumstances in the absence of any express agreement between the parties.

Citation: [2009] All ER (D) 123 (Jul)
Alternative citations: [2009] EWHC 1713 (Ch)
Hearing date: 10 July 2009
Court: Chancery Division
Judge: Nicholas Strauss QC sitting as a Deputy Judge of the High Court
Representation: Andrew Bailey (instructed by Francis Thatcher & Co) for the defendant.Richard Power (instructed by A.I. Sampson & Co) for the claimant.
Keywords: Trust and trustee – Constructive Trust – Unmarried couple – Conveyance of house into joint names without express declaration of beneficial interests – Principles applicable in determining beneficial interests in property – Couple separating – Woman left in occupation with children – Whether fair and just for court to impute unequal shares in beneficial ownership in absence of express agreement as to split.

Summary: The judgment is available at: [2009] EWHC 1713 (Ch)
The parties, who were an unmarried couple, bought a property together ('Badger Hall Avenue') which they occupied from about May 1984. They had two children. The house was bought in joint names; funded partly by the claimant and the balance by an interest only mortgage supported by an endowment policy. A further loan was taken out for an extension which was built and paid for largely by the defendant. Household bills, including the mortgage payments, were shared. In October 1993, their relationship ended and the defendant moved out.

The claimant continued to meet the mortgage payments, endowment policy and all other payments required to maintain the property. She supported their children with little or no contribution from the defendant and did not seek child support payments. The parties cashed in a life insurance policy they had held and divided the proceeds, partly to enable the defendant to buy a second property ('Stanley Road') in his sole name in May 1996. He made all mortgage payments and met other expenses required to maintain the Stanley Road property. In May 2008, the defendant served a notice of severance relating to the Badger Hall Avenue property. The claimant brought a claim under the Trusts of Land and Appointment of Trustees Act 1996 in respect of the two properties. In the county court, it was common ground between the parties that they held the beneficial interest in the Badger Hall Avenue house in equal shares until October 1993. It was also common ground that the claimant did not acquire a beneficial interest in the Stanley Road property. The issues were whether, and if so to what extent, their respective beneficial interests in Badger Hall Avenue were changed when the defendant left, ceased to contribute to the mortgage and other outgoings and bought his own separate property at Stanley Road. It was held at first instance that the claimant was entitled to 90% of the value of the Badger Hall Avenue property on the basis that it was 'fair and just'. The defendant appealed.

The appeal would be dismissed (see [53] of the judgment).

It was established case law that: (i) in cases in which the property was conveyed into the sole name of one of the partners, there was a presumption that he or she was intended to be the sole beneficial owner; (ii) where, however, the property was put into joint names, it was presumed that the parties intended that each should have not only a legal but also a beneficial interest, and that those interests should be equal; (iii) where the presumption was displaced, assuming that there was no express agreement as to the respective amounts of the parties' interests, the court would quantify them by reference to the whole course of dealing between the parties and taking into account all conduct which threw light on the question of what shares were intended.

The court would assess what, in the light of their conduct, the parties were to be taken to have intended and not impose what the court itself would consider to be fair; (iv) it was clear that it remained the duty of the court to decide what the common intention of the parties was, or should be taken to have been, and on that basis to reallocate their property interests where appropriate. The same applied in cases where no evidence of actual intention existed; and (v) whatever the beneficial interests might be at the time of acquisition, a trust might be 'ambulatory' ie the intentions of the parties as regards their interests in the property might change, or be taken to have changed, over time (see [26] of the judgment).

The court should not override the intention of the parties in favour of what the court itself considered to be fair. To the extent that the intention of the parties could not be inferred, the court was free to impute a common intention to the parties, which they either did not have, or at least did not express to each other. It was difficult to see how that process would work, without the court supplying what it considered to be fair. The court was not entitled to disregard the evidence of what the parties probably had intended and substitute what it might consider to be fair.

That did not mean that, while respecting the parties' intentions so far as they were apparent, the court could not consider what was fair so as to supply any missing elements. In many cases, the parties had not indicated what their respective shares were to be, or how they were to be altered to take account of changing circumstances. The court could not assume that two parties who had not fully clarified their intentions as to their respective beneficial interests, either initially or on the breakdown of the relationship, did not intend considerations of fairness to be relevant in determining their eventual interests. In the context of the facts of a particular case, all relevant financial circumstances might, but not necessarily would, be relevant, including the incidence of financial responsibility for the children (see [30], [31], [32], [33], [34], [35], [52] of the judgment).

In the instant case, there was evidence of conduct from which it was right to conclude that the parties intended their respective shares to alter following the defendant's departure, but none to indicate how. The only available criterion by which to assess the extent of the alteration was what was objectively fair, and the only judge of that could be the court. Having initially intended to pool their resources in the usual way, in 1993 that intention ceased. the defendant's capital contribution to the value of the Badger Hall Avenue property, taking into account the extension, represented nearly 50% of its value.

His departure and acquisition of another property did not justify saying that he was to be taken as having entirely abandoned whatever stake he had in the previously shared property. Despite the absence of any communication by either party to the other of any actual intention, the trial judge was right to impute to the parties an intention that their beneficial interests should be altered to take account of changes in the circumstances from how they stood at the time that they parted, and that, in the absence of any indication by words or conduct as to how they should be altered, the appropriate criterion was what he considered to be fair and just. The trial judge did not override any different intention which, from their words or conduct, could reasonably have been attributed to them. That approach was justified as being in accordance with the common intention of the parties. The attribution of 90% to the claimant was justifiable.

By not contributing to the outgoings at Badger Hall Avenue after 1993, the defendant was able to buy another property on which there was almost as great a capital gain as that at Badger Hall Avenue. It would not be reasonable for the defendant to have, and the parties could not be taken to have intended that he should have, a significant part of the increased value of Badger Hall Avenue in addition to the whole of the capital gain from Stanley Road. Therefore it was not reasonable for him to retain more than a small interest in Badger Hall Avenue and the 10% assessed by the trial judge was well within the range of what was fair. In the circumstances, the fact that the defendant did not contribute to the maintenance of the children was not a factor to be taken into account (see [31], [47], [48], [49], [50], [51], [52] of the judgment).

Stack v Dowden [2007] All ER (D) 208 (Apr) applied; Oxley v Hiscock [2004] All ER (D) 48 (May) applied.

Charlotte Hennessey, solicitor

Legislation
 

Housing and Regeneration Act 2008 (Commencement No 6 and Transitional and Savings Provisions) Order 2009

SI 2009/2096: Abolition of low rent test as a means of determining eligibility for enfranchisement in relation to shared ownership houses from 7 September 2009

Published date: 14 August 2009
Jurisdiction: England; Wales
Enactment citation: SI 2009/2096
Enabling power: Housing and Regeneration Act 2008, sections 322, 325(1), (4)
Summary: Commences provisions of the Housing and Regeneration Act 2008, Pts 1, 2, in England and Wales, on 7 September 2009.

Commences the remainder of the Housing and Regeneration Act 2008, section 114, which gives the Secretary of State powers to make an order in relation to the registration of local authorities as providers of social housing.

Commences the provisions on leasehold enfranchisement in Housing and Regeneration Act 2008, sections 300-302, so far as they are not already in force, subject to the transitional and savings provisions in article 3(1) and 3(2). Sections 300-302, which make amendments to the Leasehold Reform Act 1967, have effect only in respect of a tenancy granted after the commencement of these provisions, or granted after the commencement date where an agreement for that tenancy was entered into before the commencement date.

Commences the Housing and Regeneration Act 2008, section 316, subject to savings. Section 316 of the Act amends the definitions in the Housing Act 1985, section 622(1) of "authorised deposit taker" and "authorised insurer".
 
Statutory instruments

Building Regulations (2009 Amendment Act) (Commencement) Order (Northern Ireland) 2009

SR 2009/272: Definition of low or zero carbon systems introduced

LNB News 27/07/2009 12

Published date: 27 July 2009
Jurisdiction: Northern Ireland
Enactment citation: SR 2009/272
Commencement date: 31 August 2009
Enabling power: Building Regulations (Amendment) Act (Northern Ireland) 2009, section 15(4)

Summary: Require district councils to take account of the desirability of preserving the character of protected buildings in carrying out their functions under building regulations. Require nominations to the Building Regulations Advisory Committee to come from "persons" rather than "bodies". Allow building regulations to be made for the purposes of preserving or enhancing the environment and to promote sustainable development. Create a new offence to knowingly or recklessly submit false or misleading information for the purposes of securing building regulations approval.
 
Land Registration (Amendment) Rules 2009

SI 2009/1996: Additional form of execution for limited liability partnerships

LNB News 24/07/2009 39

Published date: 24 July 2009
Jurisdiction: England; Wales
Enactment citation: SI 2009/1996
Commencement date: 21 July 2009
Legislation affected: SI 2003/1417 amended
Enabling power: Land Registration Act 2002, sections 1(2), 25(1), 27(6), 126, 127(1), 128(1), schedule 10, paras 6(a), (b), 8
Summary: Amend the Land Registration Rules 2003 so as to:

  • make provision in relation to the registration of charges created by certain overseas companies, consequent upon the coming into force of the Companies Act 2006, part 34 and the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009;
  • amend the information concerning overseas companies required by certain of the forms prescribed by the principal rules;
  • amend Schedule 9 by providing for an additional form of execution for limited liability partnerships consequent upon the coming into force of the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 and by making other minor changes.

Commonhold (Land Registration) (Amendment) Rules 2009

SI 2009/2024: Amendments made to commonhold land registration forms

LNB News 24/07/2009 59

Published date: 24 July 2009
Jurisdiction: England; Wales
Enactment citation: SI 2009/2024
Commencement date: 1 October 2009
Legislation affected: SI 2004/1830 amended
Enabling power: Commonhold and Leasehold Reform Act 2002, section 65

Summary: Amend the Commonhold (Land Registration) Rules 2004 as a consequence of amendments made to the Commonhold and Leasehold Reform Act 2002 by the Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009.

Rules 3, 4, 5 and 6 of these rules amend rules 4 (lodging a copy document), 19 (registration of an altered memorandum or articles of association), 23 (registration of a successor commonhold association) and 28 (completion of application for registration) of the principal rules to refer to "articles" instead of "memorandum and articles" and "memorandum or articles". Rule 7 of these rules amends three of the forms prescribed by the principal rules - Form CM1 (application to register a freehold estate in commonhold land), Form CM3 (application for the registration of an amended commonhold community statement and/or altered memorandum and articles of association) and Form CM6 (application for registration of a successor commonhold association) - again to refer to "articles" instead of "memorandum and articles".
 
Value Added Tax (Buildings and Land) Order 2009

SI 2009/1966: Time when a relevant interest is treated as acquired is the time at which a supply is treated as taking place for the purposes of the charge to VAT in respect of an acquisition

LNB News 23/07/2009 44
Published date: 23 July 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/1966
Commencement date: 1 August 2009
Enabling power: Value Added Tax Act 1994, section 51(2)

Summary: Amends the Value Added Tax Act 1994, schedule 10 in relation to supplies made on or after that day. The conditions which must be met in order for a body corporate to cease to be a relevant associate of an opter are amended. The requirement that no consideration remains unpaid in respect of a disposal of a relevant interest in the building or land concerned is replaced by the requirement that no supply for the purposes of the charge to VAT in respect of the disposal is yet to take place or would be yet to do so if one or more conditions were to be met. 
 
Journals

Planning: A roadblock to renewable energy in the UK

Environmental Law Review, 1 December 2008: Why the UK planning system provides little support to the installation of renewable energy projects

LNB News 18/08/2009 13

Published date: 18 August 2009
Author: Georgina Crowhurst and Simone Davidson
Journal name: Environmental Law Review
Journal date: 1 December 2008
Journal citation: Enviro LR 10 3 (181)
Jurisdiction: England; Scotland; Northern Ireland; Wales

Summary: Considers the UK planning system as one of the major roadblocks to renewable energy projects, and looks at illustrative examples of renewable energy projects that have been held up in this system. Given its location, with the right frameworks in place, the UK could become a leader in renewable energies such as tidal and sea powers, just as Japan is for solar power and Denmark is for wind power. Technology on its own, however, is not enough and there needs to be the right regulatory, policy and procedural framework in place to get the renewable energy projects up and running.
 
Property: Safe as houses?

New Law Journal, Issue 7382: Best course of action is still avoidance and there is no substitute for the tried and tested "know your client" approach

LNB News 17/08/2009 2

Published date: 17 August 2009
Author: Amanda Eilledge
Journal name: New Law Journal
Journal date: 14 August 2009
Journal citation: 159 NLJ 1160
Jurisdiction: England; Scotland; Northern Ireland; Wales

Summary: Assesses the threats posed by mortgage identity fraud. There is a misconception among conveyancers that provided they have taken reasonable steps to verify the identity of their client, they will not be liable to the victims of mortgage fraud if their client turns out to be an imposter. A more recent and far more sophisticated variation on this fraud involves a fraudster who adopts the identity of a residential homeowner with a high credit rating and no mortgage.
 
At the tipping point

Law Society Gazette, 6 August 2009: Conveyancing solicitors face some tough decisions if they are to find robust strategies to cope with technological change

LNB News 17/08/2009 37

Published date: 17 August 2009
Author: Timothy Hill
Journal name: Law Society Gazette
Journal date: 6 August 2009
Journal citation: (2009) LS Gaz, 6 Aug, 6
Jurisdiction: England; Wales

Summary: Considers the challenges facing conveyancing solicitors. Technology is a significant factor in success or failure in this environment. Survival will involve abandoning paper-based routines, acquiring expertise in the management of digital systems and facing formidable new competitors.
 
Too much, too long

Trusts and Estates Law & Tax Journal, July / August 2009: The impact of potential legislation on perpetuity periods and excessive accumulations is explained

LNB News 14/08/2009 9

Published date: 13 August 2009
Author: Helen Bryant, Madeleina Loughrey-Grant and Adam Carvalho
Journal name: Trusts & Estates Journal
Journal date: 1 August 2009
Journal citation: Trust and Estates Law & Tax Journal, August 2009, 25
Jurisdiction: England; Scotland; Northern Ireland; Wales

Summary: Looks at the two rules introduced to the House of Lords 15 years after the Law Commission first consulted. The 'rule against perpetuities' deriving from common law and statutory sources is explained. It's effects on existing wills and trusts is also explored. 
 
Listening to reason

Solicitors Journal, 28 July 2009: A alternative view of landlords rights

LNB News 14/08/2009 47

Published date: 13 August 2009
Author: Julian Sidoli de Ceno
Journal name: Solicitors Journal
Journal date: 28 July 2009
Journal citation: 153 SJ 29, 6
Jurisdiction: England; Scotland; Northern Ireland; Wales
Related legislation: Housing Act 1988

Summary: Explains how landlords rights on residential properties will differ from commercial properties. The Courts will be reluctant to make an order for possession on a property with protected tenancy. The Housing Act 1988 is reviewed.
 
VAT and residential development

Tax Journal, Issue 992: The main VAT considerations residential developers and persons making supplies to them should understand

LNB News 04/08/2009 77

Published date: 4 August 2009
Author: Jennie Newton and Alison Kempenaar
Journal name: Tax Journal
Journal date: 3 August 2009
Journal citation: Tax Journal, Issue 992, 21
Jurisdiction: England; Wales

Summary: Examines the basics of residential developers' VAT concerns, the next in a continuing series of basic informative articles. The VAT treatment of supplies made to and by a residential developer is complex, with some supplies zero-rated, some subject to the reduced rate of 5%, some to the standard and some will be exempt with or without an option to tax. This obviously has implications both for the level of VAT which should be charged on the supplies made but also on the recovery of input tax by the person making the supply.
 
Holding the keys

Solicitor's Journal, 21 July 2009: What should be considered when purchasing property for a charity?
LNB News 06/08/2009 8

Published date: 3 August 2009
Author: Jane Lonergan
Journal name: Solicitors Journal
Journal date: 21 July 2009
Journal citation: 153 SJ 28, 10
Jurisdiction: England; Scotland; Northern Ireland; Wales

Summary: Shows the economic position of charities during the current economic downturn. Competition for work means practitioners are taking on work in unfamiliar areas. Some are completely unfamiliar with the specifics involved in acting for a charity client in a property transaction.
 
A potent weapon in the fight for access

Estates Gazette, 18 July 2009: Why easements can be a more effective weapon than restrictive covenants for landowners to control the use of neighbouring land

LNB News 03/08/2009 30

Published date: 3 August 2009
Author: Sandi Murdoch
Journal name: Estates Gazette
Journal date: 18 July 2009
Journal citation: Estates Gazette, 18 July 2009, 83
Jurisdiction: England; Wales
Related cases: Heslop v Bishton [2009] EWHC 607 (Ch), [2009] 17 EG 102 (CS)

Summary: Looks at the case of Heslop v Bishton, which examined the extent of any power that a landlord may have to insist on the re-routing of a right of way. Restrictive covenants are usually perceived as the major mechanism by which private landowners can control the free use or development of neighbouring land. However, although easements are usually more limited in scope, they can frequently prove to be the more potent weapon.
 
Fashion trend de nos jours

Estates Gazette, 18 July 2009: How turnover rents can help landlords and tenants during the economic downturn

LNB News 03/08/2009 32
Published date: 3 August 2009
Author: Karen Mason and Amanda Gray
Journal name: Estates Gazette
Journal date: 18 July 2009
Journal citation: Estates Gazette, 18 July 2009, 80
Jurisdiction: England; Wales

Summary: Discusses the benefits and disadvantages of turnover rents, which are becoming increasingly popular as a means of staving off the threat of tenant insolvency. While popular in the 1980s and early 1990s, turnover rents lost favour to open rents, with a conventional rent review at regular intervals. But landlords and tenants are now introducing turnover rents as a means of helping both parties through difficult times, whether through varying an existing lease or by granting a new one.
 
Do your own dirty work

Building, 3 August 2009: How developers can fulfill their obligations to clean up contaminated land
LNB News 03/08/2009 38

Published date: 3 August 2009
Author: Claire Sheppard
Journal name: Building
Journal date: 10 July 2009
Journal citation: Building, 3 August 2009, 50
Jurisdiction: England; Wales

Summary: Looks at how developers should go about cleaning up contaminated land. Often when a developer acquires land it will assume contractual responsibility for contamination, so it has to factor the remediation cost into its development budget. Under the statutory regime for historically contaminated land, the actual or proposed use of a site determines the standard for remediation.
Planning: A roadblock to renewable energy in the UK.

Building, 3 August 2009: How developers can fulfil their obligations to clean up contaminated land

LNB News 18/08/2009 13

Published date: 18 August 2009
Author: Georgina Crowhurst and Simone Davidson
Journal name: Environmental Law Review
Journal date: 1 December 2008
Journal citation: Enviro LR 10 3 (181)
Jurisdiction: England; Scotland; Northern Ireland; Wales

Summary: Considers the UK planning system as one of the major roadblocks to renewable energy projects, and looks at illustrative examples of renewable energy projects that have been held up in this system. Given its location, with the right frameworks in place, the UK could become a leader in renewable energies such as tidal and sea powers, just as Japan is for solar power and Denmark is for wind power. Technology on its own, however, is not enough and there needs to be the right regulatory, policy and procedural framework in place to get the renewable energy projects up and running.