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Issue 74 – July 2010

Welcome to the July edition of the Property Section
e-alert. 
 
 
We hope you are pleased with the new format and content of the Property Section e-alerts. We are continually looking for ways to improve them further, and for this edition, have marked up items we feel will be of particular interest to practitioners with green bullets, so if you are particularly busy, you can see the main headlines first, as well as reading the other interesting and useful content later. If you have any suggestions as to how the alert could be improved further, or if there is any particular subject which you would like to see featured in Property in Practice, please email the section.


Section Committee Chair, Peter Rodd



News


Cases and Legislation
Collated by the Law Society Library, with cases linked in full to BAILII, where available:


Cases

  • Al Khudairi & Anor v Abbey Brokers Ltd & Ors [2010] EWHC 1486 (Ch) (22 June 2010)
    A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. Agents are conventionally fiduciaries. Fiduciaries have an obligation of loyalty. A person can be dishonest regardless of whether he appreciates that his conduct would be considered dishonest by ordinary honest people.
  • Dominion Corporate Trustees Ltd & Ors v Debenhams Properties Ltd [2010] EWHC 1193 (Ch) (27 May 2010)The courts have shown some reluctance to interpret a termination clause in a complex contract containing many innominate terms as providing a party with the right to terminate for any breach, however minor. A reasonable commercial person would understand such a clause as meaning that if either party shall in any respect fail or neglect to observe or perform any provision of the agreement in a way that amounts to a repudiatory breach, or if an insolvency event arises, then the innocent party may terminate in the manner prescribed.
  • Frasers Islington Ltd v The Hanover Trustee Company Ltd & Ors [2010] EWHC 1514 (Ch) (25 June 2010)
    Where a claim for specific performance would not confer upon the respondent to the claim everything for which he contracted, the court will usually first consider whether nonetheless the respondent will receive substantially that for which he bargained. A contractor may obtain specific performance where he is merely unwilling, rather than unable to perform his obligations. The reasons for the claimant’s refusal to perform his obligations in full will almost invariably be relevant to the granting or withholding of relief.
  • High Street Winterbourne, Re [2010] UKUT 206 (LC) (24 June 2010)The potential profit that would accrue to the applicants were the application to be allowed should not be taken as the proper measure of any loss or disadvantage suffered by the objector in consequence of the modification of a restrictive covenant.
  • The Law Society of England and Wales v Habitable Concepts Ltd & Anor [2010] EWHC 1449 (Ch) (21 June 2010)A wrongful recipient of trust property is not without more under a personal liability to restore the benefit received.
  • Potter v London Borough of Hillingdon [2010] UKUT 212 (LC) (28 June 2010)
    Valuation for the purpose of compensation for compulsory purchase is to be made by applying the provisions that are contained in the Land Compensation Act 1961. Any potential development value must be discounted for delay and risk.
  • Prebble v Costa [2010] EWCA Civ 717 (23 June 2010)
    In a case where there is no contemporaneous documentation and the unusual circumstances render inherent probabilities elusive, the decision is bound to turn on the judge’s assessment of the witnesses. Attempts to secure a mortgage are not sufficient to dispel an inference that a prospect of obtaining one is negligible.
  • Smith v Cooper & Anor [2010] EWCA Civ 722 (25 June 2010)
    Independent advice is not an essential element of rebutting a presumption of undue influence, but the significance of its presence or absence needs to be seen in the context of the principles relating to undue influence as set out in Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44. It is not sufficient to show that there was no disadvantage.

Legislation

  • Land Registration (Proper Office) Order 2010, SI 2010/ 1635
    This order designates particular offices of the land registry as the proper office for the receipt of specified descriptions of application under the Land Registration Act 2002. It replaces the Land Registration (Proper Office) (No. 2) Order 2009. As a result of this order, from 1 October 2010, the Land Registry’s Portsmouth, Stevenage and Tunbridge Wells Offices will cease to be proper offices.
  • Mortgage Repossessions (Protection of Tenants etc) Act 1010 (Commencement) Order 2010, SI 2010/1705
    The Mortgage Repossessions (Protection of Tenants etc) Act 2010 is intended to protect persons whose tenancies are not binding on mortgagees and to require mortgagees to give notice of the proposed execution of possession orders. This Order brings the Act into force (apart from section 4, which came into force on Royal Assent) on 30 June 2010 for the purpose of enabling the Secretary of State to make regulations under section 2. The remainder of the Act is brought into force for all purposes on 1st October 2010.
Other material

  • Bob Neill sets out the future of local planning, Department for Communities and Local Government
    The Planning Minister, Bob Neill, has set out the Government’s vision for the future of planning where councils and local people work together with developers and planners to deliver new building in their area. He explained how planning policy would be streamlined and simplified, to free up local authorities and communities to make their own decisions.
  • Model Planning Agreement, 2nd ed, Law societyThe second edition of the model planning agreement (Section 106) has been published. It has been revised to take account of legal and economic developments since the first edition and also expands on the provisions for affordable housing. The model is intended to: provide a starting point for negotiations over planning agreements with local authorities; reduce the time spent negotiating standard matters; and encourage greater standardisation in drafting planning agreements and the use of common provisions.
  • Penfold, Review of non-planning consents: Final Report: July 2010, Department for Business Innovation and Skills
    The Review was established to explore whether the process for obtaining non-planning consents is delaying or discouraging business. The recommendations made to the Government by this Review represent a package of changes that together aim to deliver real benefits to developers by achieving greater certainty, speedier decisions, reduced duplication between regimes and minimised bureaucracy.
  • Planning Policy Statement 3 (PPS3): Housing, Department for Communities and Local Government
    PPS3 has been reissued. The definition of previously developed land now excludes private residential gardens so as to give powers to local authorities to prevent the practice of “garden grabbing”. The specified minimum density of 30 dwellings per hectare on new housing developments has also been removed. The changes are intended to hand back planning permission powers to local authorities.
  • Reforming the home buying and selling process, Building Societies Association
    This report sets out a summary of the key themes discussed at a meeting of a wide range of professionals and sectors involved in the home buying process. It provides a summary of the views expressed by the participants and sets out the recommendations for the industries involved and for governments. 
  • Spotlight 10: Stamp Duty Land Tax avoidance, HM Revenue and Customs
    Spotlight highlights what HMRC are likely to see as tax avoidance by identifying the types of arrangements or scheme which they are likely to challenge. Spotlight 10 covers commercial and residential property sales which are being carried out in ways intended to avoid Stamp Duty Land Tax (SDLT) by reducing the purchase price below the SDLT band or threshold. 
NB. This is intended for information only, and does not represent legal advice on which reliance should be placed.



FAQs

My client intends to buy a property in Cornwall. I understand I should make tin-mining and clay-mining searches. Who do I contact in order to do this?


Member Poll

On the topic of the Law Society alternative homebuying information, we asked you:

“Do you think the Law Society’s proposal of standardised solicitor-proposed homebuying information will improve the conveyancing process?”

40 % of you said Yes – and it’s an improvement on HIPS
30 % of you said No –  although it’s an improvement on HIPs
10 % of you said No -  and it’s no improvement on HIPs


Forum
Events

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, 2nd Edition
    New edition providing a comprehensive range of checklists that follow the steps of a transaction. Also contains an accompanying CD-ROM