Oliver v Sheffield City Council [2017] EWCA Civ 225, Court of Appeal, 04 April 2017

Service Charges, Construction of Leases, Third-party funding, Double recovery by landlord

Held: Sheffield CC was the freeholder of several blocks of flats. Most of the flats were let as social housing. Some, including the Respondent's, were let on long leases. A service charge provision required the Respondent to pay a reasonable part of the costs incurred in repairing and improving her block, but not the wider estate. The local authority claimed and received some £4,400 of community funding for work done specifically to the Respondent’s property, but applied that sum to the estate costs as a whole. The Court of Appeal held that on a proper construction of the lease, the local authority had to give credit for the third-party funding, otherwise the local authority would be permitted to make a double recovery; that would be a construction producing a result which no reasonable party to the lease could sensibly have intended.

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2017] EWCA Civ 238, Court of Appeal, 04 April 2017

Easements; recreation, sports and leisure facilities, validity

A transfer in 1981 had granted the respondents the right to use gardens, outdoor swimming pool, 18-hole golf course and squash and tennis courts on the appellants' estate, and the ground and basement floors of the mansion house for sporting and recreational purposes. At the time the mansion house contained a billiard room, television room, restaurant, bar, gym and sauna. The appellants had argued that the rights granted were personal and not capable of running with the land. The Court of Appeal rejected the argument and held that an easement properly so called would improve the general utility of the dominant tenement. In the modern world, an easement should not be held to be invalid on the ground that it was "mere recreation or amusement" because the form of physical exercise it envisaged was a game or a sport. Physical exercise was now regarded by most people as either an essential or at least desirable part of their daily routines. The dictum in Mounsey 159 E.R. 621 from which the exclusion of rights of "mere recreation and amusement" had derived was obiter and not binding.

Stafford-Flowers v Linstone Chine Management Co Ltd [2017] EWCA Civ 202 Court of Appeal, 29 March 2017

S84 application, restrictive covenants, discharge, holiday accommodation

The Court of Appeal upheld the dismissal of an application to discharge a restrictive covenant on a holiday bungalow restricting the use of the property during certain weeks of the year. The bungalow formed part of a development constructed for holiday use. The covenant reflected a planning condition. The appellant had occupied the property continuously in breach of the covenant for over 10 years and had obtained a certificate of existing lawful use under the Town and Country Planning Act 1990. Upper Tribunal had held that to discharge the covenant would be the "thin end of the wedge" which would lead to a change in the character of the development as a whole. The appellant contended that the character of the estate had already changed and that the removal of the covenant would merely regularize the position which had existed for many years. The Court of Appeal held that there was no doubt that the "thin end of the wedge" argument could in an appropriate case lead to that result. Although it was legitimate to have regard to the scheme of covenants as a whole and to assess the importance to the beneficiaries of maintaining the integrity of the scheme, the fact that a covenant was discharged in one case, even within the same building scheme, did not mean that it would be discharged in another. On the other hand, if an order for discharge was made in one case, it would alter the environment in which the application was made in the next case, at least to some degree. It was however a question of fact in each case; the Court of Appeal should exercise caution in reviewing the reasons given by the tribunal, given that the latter was a specialist tribunal with a wealth of experience in such cases and that its reasons involved the exercise of judgment. It followed that the appeal could not succeed.

Islington LBC v Dyer [2017] EWCA Civ 150, Court of Appeal, 22 March 2017

Validity of notice, introductory tenancies, possession, information leaflet

The local authority landlord had served on an introductory tenant a notice seeking possession pursuant to s128 of the Housing Act 1996. The tenant had been sent a two-page "Notice" and a two-page "Information Leaflet" accompanying the notice. It was the tenant's case that the provisions of s.128(7) had not been complied with because the notice did not include a statement informing him that if he needed help or advice about the notice he should take it to a Citizen's Advice Bureau, a housing aid centre, a law centre or a solicitor: that information had instead been included in the information leaflet. The Court of Appeal disagreed. It held that the starting point was whether the document or documents relied on could reasonably be described as a notice. It would be a question of objective fact in every case whether the documents relied on formed part of the notice. Although the local authority called one document the "Notice" and the other an "Information Leaflet", it was the substance of the documents which was important. The question was whether, from an objective point of view, both documents were intended to, and did, perform the function of a s.128(1) notice. The language used fell short of an express incorporation of the contents of the information leaflet into the notice document. Had it done so, it would have put the matter beyond argument. However, the "Notice" document directed the tenant in terms to the information leaflet and that leaflet stated that it was intended "to accompany Notice of Proceedings". Any reasonable tenant receiving the documents would have realised that he needed to read the contents of both documents together. Looked at objectively, the two documents therefore functioned together as the notice.