New practice note on possession claims against trespassers, 30 September 2016

Trespassers

On 30th September 2016, the Chancery Division and Queen’s Bench Division issued a joint statement providing guidance on CPR 55.3(2) and PD55A and what amounts to a “real urgent” circumstance in which it would be appropriate to bring a claim in the High Court rather than the County Court. There should be a substantial risk of public disturbance and/or serious risk of harm to persons which requires the court’s immediate attention.   Birmingham City Council v Wilson [2016] EWCA Civ 1137, 17th November 2016

Public sector equality duty

The relevant question of whether the evidence raises a “real possibility” that someone is disabled under the Equality Act 2010 is to be assessed by looking to see whether the decision maker subjectively considered that such a “real possibility” arises or acts in a Wednesbury unreasonable way in concluding that it does not arise. The court considered the extent of the local authority's duty of inquiry, in light of the public sector equality duty under the Equality Act 2010 s.149, into whether the children of a homeless mother were disabled.

Alison Quilter v Hodson Developments Ltd (2016) [2016] EWCA Civ 1125

Property – misrepresentation – damages

The court considered the damages payable in respect of pre-contractual misrepresentations made by a property developer when selling an apartment. The developer had failed to disclose an ongoing dispute with residents concerning a defective boiler system and the buyer was entitled to recover loss based on the difference between the value of the property as represented and its true value at the date of purchase. Although she had sold the property after two years at a profit of £35,000, she was entitled to retain the benefit of the rise in market value. Re Ben Lynch [2016] UKUT 488 (LC), 23rd November 2016 Restrictive covenant – modification Alexander Bastin represented the objectors in this case concerned with the modification of a restrictive covenant, following the grant of planning permission, under s.84 LPA 1925. The Applicants wished to build more than one house on what would have been one of the original lots. The objectors were successful in resisting the modification on grounds s.84(1)(a) LPA 1925 but the restrictive covenant was modified under s.84(1)(aa) as impeding a reasonable use of the land, namely the implementation of a planning permission which is sufficiently controlled by conditions to adequately protect the amenity of the immediately neighbouring objectors. Kateb v (1) Howard De Walden Estates Ltd (2) Accordway Ltd [2016] EWCA Civ 1176, 29th November 2016 Leasehold Reform Housing and Urban Development Act 1993 The Court considered the scope of the authority given to the competent landlord by s.40(2) of the Leasehold Reform Housing and Urban Development Act 1993 to conclude proceedings with the tenant following service of a section 42 notice of claim for a new lease by the tenant. The Court held that service by an intermediate landlord of a notice of intention to be separately represented under the Leasehold Reform, Housing and Urban Development Act 1993 Sch.11 Pt II para.7(1) did not curtail the absolute authority of the competent landlord to reach agreement with the tenant under s.42 of the Act. The intermediate landlord was bound by the agreement reached between the freeholder and the tenant as to the terms of the new lease. New Ground 7B and Section 8 notice prescribed form, 1st December 2016 Section 8 Notice – possession proceedings – assured tenants The Immigration Act 2016 took effect from 1 December 2016 and inserted ground 7B into Schedule 2 of the Housing Act 1988, entitlement to possession against someone disqualified as a result of their immigration status from occupying the dwellinghouse.  The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment No. 2) Regulations 2016 contains a new version of the Section 8 Notice Seeking Possession which must be used from 1st December 2016. The Notes on the grounds for possession on the form makes clear that the court may make an order on ground 7B during the fixed-term of the tenancy even if the terms of the tenancy do not provide that it can be brought to an end on ground 7B.

Leeds City Council v Stephen Broadley [2016] EWCA Civ 1213, 6th December 2013 AST – certainty – LPA 1925 ASTs granted for a fixed term of 6 or 12 months “and thereafter continuing on a monthly basis” were not void for uncertainty. The court held that the grant of a fixed term and the ensuing periodic term are part of a single grant under the common law and LPA 1925. Such tenancies fall within the genus of the statutory descriptions in s.205(1)(xxvii) LPA 1925, either as expressly covered by the words of the provision itself or because the provision envisaged the possibility of creating terms of years, including a term for less than a year and a term from year to year.