Peabody Trust v BrecherQueen's Bench Division (TCC)24 November 2017

Failure to comply with the Party Wall etc. Act 1996 – failure to file anacknowledgment of service - Default judgment - Final injunction 

The claimant and the defendants were adjacent landowners. The defendant had served notices under the Party Wall etc. Act 1996, but no party wall awards had been made when the defendants commenced works, including excavation, and the party wall was exposed. The claimant obtained an interim injunction. Following the interim injunction the defendants provided a temporary works design and the claimant consented to those works going ahead. Upon inspection it was discovered that there had been extensive damage to the claimant's property, and on the return date the interim injunction was continued. The defendants did not acknowledge service or file a defence. The claimant applied for default judgment and the defendants did not respond or attend the hearing. The Judge noted the defendants' total disregard for the 1996 Act and its procedures; their failure to provide any information to the claimant's surveyor; the continuation of the notifiable works despite the claimant's objections; the fact that the works carried out fully exposed the party wall and had caused damage to the claimant’s property and; the evidence that although the defendants' party wall surveyor had fully engaged with the claimant's surveyor and understood the issue, he had difficulty in persuading his clients to follow his advice. On these facts the court was prepared to enter default judgment and make a final injunction, with a penal notice, prohibiting the defendants from the acts set out in the interim order, and from undertaking further notifiable works unless the claimant consented or a party wall award was made. Catherine Piercy represented the successful claimant.  

Humphrey v Rogers, 23 November 2017 (HC) (currently unreported) 

Restrictive covenants – Injunction – Damages in lieu

Jamal Demachkie appeared on behalf of the appellants/defendants in this appeal. The claimants had purchased a rural house and land from the defendants, who retained land nearby. The claimants had entered restrictive covenants not to erect buildings on their retained land without the claimants' consent. They admitted to having twice breached the covenant by converting barn buildings to residential properties without notice or consent. The trial judge granted the claimants an injunction preventing the defendants from undertaking further prohibited building works and from selling the completed residential properties, or allowing them to be used as residences. He was not willing to award damages in lieu, but held that if that was wrong, he would have awarded the claimants £195,000 in damages. The defendants appealed on, amongst other grounds, the basis that the judge should have awarded damages in lieu and that the injunction was wider than the original covenants. The appeal was allowed in part. Mrs J Slade held that the judge had not erred in law. There was no error in considering Shelfer as long as its application was not mechanical and all relevant circumstances were taken into account, applying the Coventry decision. The judge had concluded that the case was exceptional because the case for an injunction was exceptionally clear, with no factors of sufficient weight in favour of damages. She did however agree that the wording of the injunction had to reflect the terms of the covenant it was securing. The terms set by the judge arguably went beyond the covenant’s scope. The order was reworded to better reflect the covenant. 

Westmark (Lettings) Ltd v Peddle[2017] UKUT 449 (LC), 22 November 2017

Service charges -when costs are incurred under s 20B(1)- Mesne landlords 

An intermediate landlord (L) appealed against a First-tier-Tribunal decision that the respondent tenants (T) were not liable to pay service charges in accordance with the Landlord and Tenant Act 1985 s.20B(1), which imposes a 18 month time limit on the making of demands for service charges from the date when the costs are “incurred”. The service charges related to 29 flats in a development. The freehold of the development was the local authority and there was a chain of leasehold interests. L was the middle landlord in the chain, below the superior landlord, and above a residential management company. The respondents were at the bottom of the chain as the occupiers of the individual flats. The freeholder had certain obligations in relation to the development. Those costs were passed down the leasehold chain, with each tenant receiving a demand from its own landlord. By the time the sums were demanded from T, more than 18 months had passed from when the costs had been “incurred” by the freeholder. The FTT had held that “incurred” for the purpose of s 20B was when the costs had first been incurred by the freeholder. Martin Rodger QC allowed the appeal by L. In contractual terms, each of the landlords in the chain had a distinct liability of its own. Each liability was owed to a different person and was payable at a different time and in different amounts. In the language of s.20B, at each level in the chain, a cost was incurred by each landlord in turn when it received a demand for payment of its liability. A new relevant cost arose at each stage, notwithstanding that at each stage the new cost was payable in respect of the same service provided by freeholder and its contractors. The risk to the intermediate landlord of non-recovery was a more serious defect than the risk to the occupational leaseholder of being called upon to pay for a service long after it had been provided. Furthermore, the availability of the protection provided by s.20B(2) was not sufficient to permit or require a different reading of s.20B(1) than its natural meaning. Accordingly, for the purpose of s.20B(1), a relevant cost was incurred when an intermediate landlord received a demand for payment from its own landlord for services provided by it or a superior landlord, and not on the earlier date on which the superior landlord incurred its own separate cost of providing those services.  

Julia Walcott v  Randolph Jones and Margaret Jones, County Court (Central London),15 November 2017 (transcript on Westlaw) 

AST -  s 21 notice – when granted for the purpose of  the Deregulation Act 2015 s.38 

An AST had begun in August 2007 and was an oral tenancy. The landlord had served a s 21 notice and the tenant asserted that the notice was invalid because the landlord had not complied with the requirements of s.21A and s21B of the Housing Act 1988 Act, namely to obtain a gas-safety certificate and an energy-performance certificate and to provide information about the rights and responsibilities of the landlord and tenant under an assured shorthold tenancy. Both of those provisions had been introduced into the 1988 Act by the Deregulation Act 2015 s.38 and s.39. The DDJ had held that there had been a “re-grant” of the tenancy at the end of each period of the tenancy and accordingly these provision applied and as the landlord had failed to comply the s.21 notice was invalid. Judge Hand QC allowed the appeal. He noted that it was inherent in the agreement by which a periodic tenancy was "granted" that if notice was not given in accordance with the terms of that agreement, the tenancy would not be limited to the original period and would continue. Whether one regarded that as a deemed re-letting or an extension of the original term, as a matter of statutory interpretation, in neither case had the tenancy been "granted" for the purpose s.41 of the 2015 Act. Parliament did not intend there to be a “grant” of a tenancy in those circumstances. Although not a binding decision, it is a persuasive County Court decision which District Judges are likely to follow.