Back to e-alerts
Issue 70 – March 2010
Welcome to the relaunched Property Section e-alert.
We will keep you up to date with news from the Section and the sector, and case and legislation updates from Law Society's Library Online service, with links to more information on the BAILII and OPSI websites. Full case commentaries and copies of legislation can also be requested from the fast and low-cost LawDocs service.
You can find out what members think about the issues of the day, through the results of the member poll from the last e-alert (to answer our current poll, click on the box to the right and select your answer on our homepage). The new e-alert also features links to frequently asked questions from the Law Society's Practice Advice Service. This free, confidential service is available by phone and email, and provides answers to any questions solicitors
may have, on any field.
We are always happy to hear from Section members. If you have any feedback on the new design of the e-alerts or any other ideas or thoughts, please do let us know.
Peter Rodd, Section Chair
News
Planning Portal: Government freezes planning application fees
OFT: More innovation needed in home buying and selling market, says OFT
Lovemoney: Lovemoney.com says Law Society website is best place to find good property lawyer
Drainage and Water Enquiry: New standardised water and drainage system
Comunities.gov.uk: New Community Infrastructure levy regulations published
Law Gazette: Regulation of estate agents ‘unnecessary’ says OFT
Communities.gov.uk: Government boost for more local homes
Law Gazette: Conveyancing solicitors ‘failing’ clients over survey advice
Communities.gov.uk: Local action on climate change will drive down fuel bills and generate new income for councils
Communities.gov.uk: John Healey calls on councils to use their powers to stop ‘garden grabbing’
Communities.gov.uk: Local powers for councils to protect
Legal Support Network: E-Homebuying forum welcomes e-conveyancing first
SRA: Rule 2 changes – remuneration certificates, complaints handling
SRA: Arms’ length Conveyancing transactions – study
SRA: Sale and Rent-back
Planning Portal: Battersea plan approved by CABE: Planning Portal: Community Infrastructure Levy (CIL)
Planning Portal : NPS designation timetabled for Autumn 2010
Cases
(Collated by the Law Society Library, with all cases linked in full to BAILII)
Davill v Pull & Anor [2009] EWCA Civ 1309 (10 December 2009)
Delaney v Chen & Anor [2010] EWHC 6 (Ch) (8 January 2010)
Fitzgerald, Re Flat 349-51 Cheval Place [2010] UKUT 37 (LC) (10 February 2010)Joyce v Bowman Law Ltd [2010] EWHC 251 (Ch) (18 February 2010)
McHale v Cadogan [2010] EWCA Civ 14 (21 January 2010)
UK Housing Alliance (North-West) Lt v Francis [2010] EWCA Civ 117(24 February 2010)
Walker, Re Priddeons [2010] UKUT 16 (LC) (27 January 2010)
Westvilla Properties Ltd v Dow Properties Ltd [2010] EWHC 30 (Ch)(15 January 2010)
Legislation
Stamp Duty Land Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) (Amendment) Regulations 2010, SI 2010/407
The Tax Avoidance Schemes (Information) (Amendment) Regulations 2010, SI 2010/410
FAQs
How does the Law Society calculate its interest rate for late completion?
Previous Member Poll results
On the topic of the new BSA mortgage instructions, we asked you:
Have you received instruction from any building society following the implementation of the BSA mortgage instructions?
- Yes, and I believe they make the conveyancing process easier
- Yes, but I do not believe they make the conveyancing process easier
- No
Discounts
Members are entitled to 20% off selected titles from Law Society Publishing (quote promotion code PROPR) online or by telephone orders on 0870 850 1422). Recent titles include:
Property Development
Comprehensive step by step guide to the acquisition of land for development, featuring model clauses, checklists and precedents, and including a CD-ROM
Conveyancing Checklists
New edition providing a comprehensive range of checklists that follow the steps of a transaction. Also contains an accompanying CD-ROM
Conveyancing Handbook 16th Edition
Including amendments to the Solicitors’ Code of Conduct 2007, the revised TransAction forms, and the introduction of the Land Registry's 'early completion' policy
Housing Law Handbook
Practical and concise outline of housing law and procedure covering homelessness rights, the allocation of social housing, possession proceedings, and other routes into housing
Cases
Davill v Pull & Anor [2009] EWCA Civ 1309 (10 December 2009)
A use of an easement “for all purposes” would in principle permit any lawful purpose. A use “for all reasonable and usual purposes” is a limitation, but not solely to the current use.
Delaney v Chen & Anor [2010] EWHC 6 (Ch) (8 January 2010)
Sale and leaseback purchasers acquire a freehold reversion rather than an unencumbered freehold, and this should be taken into account when assessing whether a given transaction was at an undervalue.
Fitzgerald, Re Flat 349-51 Cheval Place [2010] UKUT 37 (LC) (10 February 2010)
Valuation work continues after the service of a counternotice and the commencement of leasehold enfranchisement negotiations. Indeed, valuation is an inherent part of such negotiations. However, section 60 (1) b of the Leasehold Reform, Housing and Urban Development Act 1993 does not apply to valuations prepared in the course of negotiations.
Joyce v Bowman Law Ltd [2010] EWHC 251 (Ch) (18 February 2010)
The defendant solicitors failed to appreciate the nature of an option in a contract and advised the claimant that if the vendor failed to gain planning permission he would be able to purchase an additional part of the property. Only knowledge of an intention to profit from a purchase is necessary to allow consequential damages under the second rule in Hadley v Baxendale.
McHale v Cadogan [2010] EWCA Civ 14 (21 January 2010)
Should a caretaker’s flat in a property subject to enfranchisement be valued based on being rent-free or on being funded by the service charge? The Lands Tribunal decided that the headlease should be valued as if the landlord could not recover rent through the service charge. The Court of Appeal reversed this decision.
UK Housing Alliance (North-West) Lt v Francis [2010] EWCA Civ 117(24 February 2010)
A deferred payment in a sale and leaseback agreement is not a deposit under the terms of the Housing Act 2004. Withholding such a payment on seeking possession is not susceptible to relief against forfeiture. Sale and leaseback agreements are covered by the Unfair Terms in Consumer Contract Regulations 1999, but retention of the payment in this case was not a significant imbalance or contrary to the concept of good faith.
Walker, Re Priddeons [2010] UKUT 16 (LC) (27 January 2010)
An extension to a property neighbouring a secluded garden can be objected to under a restrictive covenant even when the proposed user is reasonable and there will be no reduction in the value of the adjoining property.
Westvilla Properties Ltd v Dow Properties Ltd [2010] EWHC 30 (Ch)(15 January 2010)
Missing content necessary to an interpretation of a contract can be taken as included if it was available to the parties elsewhere. The court can fill in a blank in a contract if a reasonable person could work out what should replace the blank.
Legislation
Stamp Duty Land Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) (Amendment) Regulations 2010, SI 2010/407
These Regulations amend the Stamp Duty Land Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2005 to extend the descriptions to schemes that concern residential property. The purpose of the amendment is to require disclosure of tax avoidance schemes that seek to avoid Stamp Duty Land Tax in relation to residential property with a value of at least £1 million. The regulations will come into force on 1 April 2010.
The Tax Avoidance Schemes (Information) (Amendment) Regulations 2010, SI 2010/410
These Regulations amend the Tax Avoidance Scheme (Information) Regulations 2004 (SI 2004/1864) which prescribe the information to be provided to HMRC when a person is required to notify arrangements under Part 7 of the Finance Act 2004 and the time limits in which that information is to be provided. These Regulations extend the requirement to provide prescribed information to a person who is a party to a disclosed stamp duty land tax avoidance scheme. The regulations will come into force on 1 April 2010.