PERMITTED TO CAUSE A NUISANCE

There has been a recent High Court decision on the competing interests of a landowner who has a permit to carry out a certain activity on a piece of land and his neighbours who may potentially have a claim for private nuisance because of noxious noise or smells emanating from the use of the land.

In this case the owner of the land, who had a permit to use the land as a landfill site, had private nuisance proceedings brought against him. The permit holder and landowner defended the proceedings on two basis’. The first was that there could be no private nuisance claim where he had a permit to carry on the activity concerned, in this case use as a landfill site.

His second argument was that in order to use the landfill site properly he had to comply with several conditions which were set out in his permit and he was complying with those conditions and if he was complying with those conditions he could not be committing a nuisance as compliance with the conditions of the permit was evidence of a reasonable use of the land.

The High Court said that the existence of a permit per se was not a complete defence to these claims. However, the High Court did accept that where there is a rigorous legislative framework and an activity is permitted under that framework if the activity is carried on within the conditions of a permit there cannot be a nuisance. The Court commented that that if a landowner were to obey one very specific set of rules he should not then be liable to a private action by an individual from the common law. This case is a helpful clarification of the law and also it should provide comfort to landowners who are using their land in accordance with a specific permit and obeying the conditions.

It may also be of use to Claimants who can show that a landowner is breaching his conditions if they wish to bring a claim for nuisance.

Should you wish to discuss this Judgment or anything else in respect of disputes arising over land please do not hesitate to contact Robert Anderson on 0113 245 0733.

The Big Transfer

From the 1st October 2011 all private sewers and drains which serve 2 or more properties will become the responsibility of the statutory water and drains company. This will happen under the Water Industry Regs 2011, which came into force on the 1st July 2011. This will apply to both residential and commercial properties.

In theory most landowners will welcome this move but some multi-let  or development sites may already have complex sewerage and drainage provisions in place which may be over taken by the new statutory regime.  An objection to the automatic adoption can be made by an individual landowner if the adoption would have a seriously detrimental affect to that person. This may be important where an existing easement allows a sewer to be laid upon redevlopment and the automatic adoption results in the beneficial location of the sewer being lost. If this is the case it is vitally important that an objection is registered in time.

The following link is useful but if you require any further information about this please do not hesitate to contact Mathew Haynes on 0113 2450733.

http://www.yorkshirewater.com/the-big-transfer.aspx

HOW RESTRICTIVE IS THAT RESTRICTIVE COVENANT?

A great deal of land in this country is subject to restrictive covenants i.e. someone other than the owner of the land has a “right of veto” over the land’s use or the land being put to some specific use.

Many of these covenants have been on the land for a considerable amount of time and may have become in the view of some, archaic.

The law recognises this by allowing owners of land subject to restrictive covenants to apply to the Upper Tribunal Lands Chamber (formerly known as the Lands Tribunal) to discharge or modify any restrictive covenant. The owner of the land must establish one of the four possible grounds set out in the Law of Property Act 1925 (Section 84) and they are as follows:-

• The land or the surrounding land or other circumstances have now rendered the restriction obsolete.
• The unmodified restriction impedes some reasonable use of the land for public or private purposes.
• The holder of the covenant has agreed either expressly or by implication to the covenant being discharged or modified.
• The discharge or modification will not injure the persons entitled to the benefit of the restriction.

The classic scenario in which this type of dispute arises is when land has been bought with a view to development but some person or persons hold a restrictive covenant to prevent building.

Traditionally, developers have been fairly robust in the face of these covenants and simply continued with the development with a view to “buying off” any covenant holders who seek to enforce their covenant.

However, in a recent case a well known land developer has failed to have a restriction removed. The developer started to build the development in breach of the covenant. When the covenant holders issued injunction proceedings to prevent construction, the developer responded by applying and to the Upper Tribunal and having the injunction proceedings stayed pending the decision of the Upper Tribunal.

The Upper Tribunal found that the development would change the land from semi-rural to suburban, causing the covenant holders a loss of view and amenity and a diminution in the value of their property by at least 15% and therefore the Upper Tribunal was not prepared to modify or remove the restriction. Another interesting point is that the Upper Tribunal commented that even had they been minded to remove the restriction they would not have in this case because of the conduct of the developer. The developer ought not to have begun his development before making the necessary application.

Accordingly, this is a stark warning to those who feel that they could simply keep building in the face of a restrictive covenant. In the case of smaller developments it is of course sometimes possible to obtain insurance against the enforcement of restrictive covenants and this is a possibility to be considered, especially where it has not been possible to contact the covenant holder. However, clearly it would be ill advised to begin any such development without taking full cognisance of any restrictive covenant.

If you wish to discuss this or any other matter please do not hesitate to contact Robert Anderson on 0113 245 0733.

New Commercial Property Service Charge Code

A common cause for contention between LL and commercial tenant is the issue of the service charge which is payable under the Lease. With that in mind and with the  intention to remove service charges as an area of conflict between commercial property owners and occupiers the second edition of the RICS commercial property Service Charge Code has come into force.

The updated code is endorsed by leading industry bodies and builds on the themes of the first edition with greater emphasis on communication, timeliness and transparency between commercial property owners and occupiers. Many of the larger Landlords have agreed to abide by its principles.

Building on the standards announced in the initial code, the updated guidance now requires occupiers to be proactive in their communication with managers and investors. Furthermore, issues around sustainability are addressed for the first time. Compliance with the code also requires the adoption of the Industry Standard Cost Classifications.

If you have any issues regarding the service charge element of a commercial lease and would like to discuss this topic please contact Mathew Haynes on 0113 2450733.

The cost of not mediating

The Court of Appeal has recently re-emphasised the strong judicial support for Alternative Dispute Resolution.

In this particular case between a builder and a residential householder despite the builder being successful at Trial the Court refused to award the builder his costs. Throughout the litigation process the householder had made a number of reasonable offers and proposed mediation. The builder had not accepted any offers, refused to mediate and failed to make any offers of his own. Both the Court at first instance and the Court of Appeal decided that in these circumstances there was sufficient justification to depart from the usual rule that the “loser pays the winner’s costs” and refused to award the builder their costs.

This is a stark reminder to all litigants that no matter how strong their case, their feelings about a matter or their desire to have a day in Court it is important to engage in some form of Alternative Dispute Resolution before proceeding to a final hearing at a Trial before a Judge.

If you wish to discuss this or any other issue in respect of Alternative Dispute Resolution or mediation please do not hesitate to contact our Robert Anderson on 0113 245 0733.

RATEABLE VALUES AND THE PAYMENT OF BUSINESS RATES

Pre April 2008 much of the empty commercial properties on the market received 100% relief from business rates for the first 3 vacant months, this was followed by a reduction of 50% thereafter, with industrial warehouse properties receiving the full 100% relief for as long as they remained empty.

 The law was then changed meaning that empty commercial properties only received the 100% relief from business rates for the first 3 months (extended to 6 months in the case of industrial warehouse properties) with full rates being paid thereafter.  The bad news is that the rateable value thresholds at which an empty commercial property becomes liable for business rates dropped on 1 April from £18,000 (initially £2200 and subsequently £15000) to £2600 in England and £2200 in Wales.  This change obviously will bring many more properties within the scope of business rates thus adding to the already heavy burden of owners of empty commercial properties.

 If you require any further information or advice about this particular topic please contact Mathew Haynes on 0113 245 0733.

Are you Licensed for Multiple Occupancy?

Are you a Landlord of an HMO? What you may rightly ask is what is an HMO?

An HMO is a dwelling house for multiple occupancy or a dwelling house used by 3 or more unrelated people who share some common facilities for example quite often a bathroom and/or kitchen. Any landlord who is separately renting out rooms in a property to three or more separate tenants must have a licence. The licence is not transferrable with the property and is personal to the landlord. Each local authority is responsible for awarding licences and have their own licensing procedures, criteria and fees and landlords should make themselves aware of those and make sure they are complying with the same.

Landlords should be aware that if they do not have a licence they are committing criminal offence and could leave themselves liable for a fine of up to £20,000. They could also leave themselves open to civil sanctions from the tenants which would include returning all rent paid by the tenant during the period which the tenant was paying rent to an unlicensed landlord.

Further, an unlicensed landlord will not be able to obtain possession against any tenant.

Accordingly it is absolutely crucial that any landlord who does rent a property room by room ensures that he is licensed by his local authority to do so.

Should you wish to discuss this or any other issue in respect of residential landlord and tenant law please do not hesitate to contact Robert Anderson on 0113 245 0733.

Energy efficiency becomes ever more important!

The Governments proposals to meet their emission targets under the Kyoto Protocol has resulted in the Carbon Reduction Commitment (CRC).

Basically, any organisation (private or public) whose electricity consumption across all of their buildings nationwide is greater than £500,000 per annum must record and monitor their CO2 emissions and buy “allowances” equivalent to their emissions. The “allowances” will initially cost £12 per tonne of CO2 and will enable the organisation to purchase the electricity (and other energy supplies) they need for their future use.

How will this affect you? One example is where you are the tenant of a building owned by a large organisation. If they are a part of the scheme then you are likely to see an increase in the cost of any energy supplied to you from the organisation. The landlord will of course want to recover any additional costs to which it is exposed to comply with the CRC and that inevitably will be passed on to it’s tenants. In fact we are already seeing CRC clauses in leases to protect the landlords position.

If you require any further information about this article please do not hesitate to contact Mathew Haynes on 0113 2450733.

An End to Expert Witness Immunity

This week has seen a major decision come out of the new Supreme Court (the House of Lords in old money) in respect of the immunity enjoyed by expert witnesses.

Until this week an expert witness enjoyed immunity from any form of civil action arising from the evidence that he or she gave in the course of Court proceedings. The development of the rule can be traced back 400 years and was designed to prevent defamation claims from being brought against witnesses. This was then extended to all forms of civil suit.

However, this week a majority of the Supreme Court ruled that that immunity should no longer cover a claim for negligence and/or breach of contract. The reasoning of the Supreme Court was that a general rule of law in this country is that every wrong should have a legal remedy. Any exception to this rule must be justified as necessary in the public interest and that such an exception should be kept under constant review. The majority concluded that there was no longer sufficient justification to restrict claims against experts for breach of contract and negligence.

In making this decision the majority of the Supreme Court drew heavily on the fact that the abolition of similar rule in respect of advocates by the House of Lords in 2001 and had not lead to a large number of questionable claims neither was there any evidence it had effected the willingness of people to appear as advocates.

It is the writer’s experience that the vast majority of expert witnesses carry out their role diligently, professionally and in accordance with their duties to the Court and should not be overly concerned by this change in the law. The decision does, however, provide a remedy in very exceptional circumstances to the litigant whose case may be prejudiced by a rogue or incompetent expert witness.

Should you wish to discuss this decision or any other issue relating to professional negligence please do not hesitate to contact Robert Anderson on 0113 245 0733.

Lease renewals and EPCs

I am often asked by my Landlord clients whether or not they need to provide an EPC to their Tenant on a lease renewal. After having given the matter some thought and after discussing this question with a couple of friendly surveyors I believe the answer has got to be no.

The 2007 Regulations require a Landlord to provide an EPC to a prospective Tenant. It must follow that this requirement does not extend to an existing Tenant as any other approach would be inconsistent with the EPC regime, which is ultimately to inform about the building’s energy performance and rating. An existing Tenant should be deemed to know this information as they are the one in occupation and are invariably paying the energy bills.

This approach is supported by The Department for Communities and Local Government who have provided guidance which states that not all transactions will be considered to be a sale or let…………….including lease for renewels or extensions. This is a welcome relief to Landlords who could otherwise be looking at a fairly hefty fee for the preparation of an EPC on a reasonably sized commercial property.

If this issue is of concern to you or you require any further advice or information please do not hesitate to contact Mathew Haynes on 0113 2450733.