Property Owners - Be Aware...

The intention of this bulletin is to highlight some important areas which need to be considered by landlords and landowners in both the commercial and the residential sectors.

Nuisance - Tree Roots
One of the most common forms of nuisance which relates to property is the encroachment of tree roots from one plot of land to another.  However, contrary to some beliefs, liability is not strict and in order to claim damages it is generally necessary for a neighbour to have been put on notice.  Early advice of action is therefore vital.

Forfeiture
Forfeiture is not a remedy generally available in the residential sector, however it remains still a remedy to a commercial landlord in the event of a tenant’s failure to pay rent or other breach of covenant.  In certain circumstances it is unnecessary to apply to Court to re-enter the property and forfeit the lease.  We regularly use a specialist firm of certified bailiffs to forfeit without Court proceedings.  However, great care needs to be taken before embarking on this course of action as an unlawful forfeiture is likely to lead to a claim by the tenant for damages.

Dilapidations

A new pre-action protocol has just been put in place.  The intention behind protocols of any form is to assist in a sensible compromise being reached in order to avoid the expense and uncertainty of litigated disputes.  Failure to comply with the protocol can have disastrous consequences particularly in relation to costs.

It is therefore crucial that the new protocol be adopted from the outset.

Service Charges
Since new legislation came into force in 2002/2004 the requirements of landlords and their managing agents to consult with their tenants has been made more stringent and arguably complicated.  Failure to do so may well result in the service charge not being payable.

There are also new provisions relating to the recovery of service charges and ground rent and in particular the ability to forfeit the lease or threaten to do so which previously was a potent weapon in the landlord’s armoury.

Resident Landlord & Tenant Possession Actions
There has been recent legislation which has impacted upon the rights of landlords to obtain possession orders.  New Rules have been brought in concerning deposits which have to be held under a tenancy deposit scheme.

Failure to do so will result in the landlord not being able to reclaim possession following the end of the tenancy.

The legislation has also affected how houses in multiple occupation are defined and licensed.  Again, a failure to licence will result in an application for possession against one of the tenants being refused.

There has been recent case law concerning the method and timing of the service of notices requiring possession which are necessary before a possession action can be brought.  Many mistakes are made in the drafting and service of these notices and extreme care is needed to avoid the application being dismissed at the hearing on a technicality.

These are only some of the potential pitfalls which affect what many perceive should be a straightforward exercise in recovering possession of a house owned by them.

Boundary Disputes
Boundary disputes are becoming more and more common, but very few landowners and a significant amount of lawyers seem not to understand the concepts involved and the evidence which is admissible and relevant in determining the dispute.  The law has to some extent been clarified by a Court of Appeal decision in late 2006 – ignore it at your peril.

The belief that a Land Registry plan is definitive (or even relevant) is widely held but completely wrong – as is sometimes the position of an existing fence for example.

Boundary disputes can be notoriously expensive and the key is getting the right evidence in place at the outset.

Adverse Possession
There have been dramatic changes in the law relating to adverse possession since the implementation of the Land Registration Act 2002.  However, what should have been and was intended to be a simplification of the law has in fact resulted in numerous complications as a result of transitional provisions within the Act and also case law which related to human rights issues.

Even now much care and understanding is needed in order to assess whether the “old law” or “new law” or a hybrid applies before an application to the Land Registry can be made.

Commercial Property Lease Renewals
As a result of recent changes to the Act which mostly governs commercial landlord and tenant issues, there are new rules which relate to the timing of and the need for a Court application to renew a business tenancy.  Also, there have been significant recent changes affecting how business tenants can vacate premises at the end of leases.  Advice should always be taken as failure to act in certain circumstances could be disastrous, for example causing a tenant to have to vacate and lose its business or renew on onerous terms.

Assignment
The law on assignment of contracts and what have previously been described as “a black hole” was clarified last year as a result of a Court of Appeal decision in a case handled by Warners.  Although that case was specific to a developer client it has had an impact on the law of assignment generally.

It was held in that case that the authors of a soil report were liable in contract to our developer client even though the report was prepared for a previous owner of the land and not assigned to the developer until after the sale of the land at full value and more importantly until after the loss was incurred as a result of a landslip.

This case demonstrates how an action can be brought as a result of some lateral legal thinking.  Who would have thought to have entered into an assignment years after the event and after the sale?

For further information contact:
Robert Twining
Tel: 01732 747900
E-mail: robert.twining@warners-solicitors.co.uk