Property Litigation weekly update - 7 May 2020


As the bank holiday sunshine beckons, we present a summary of this week's property-related legal updates, some positive news for much needed Covid-escapism. We look forward to hearing your news and our national property litigation team remains on hand to assist with property-related legal issues.

Guidance on Gas Safety Inspections during the Covid-19 pandemic

Despite the ongoing government guidelines on social distancing, landlords still have a legal duty to repair and maintain gas pipework, flues and appliances in a safe condition, and to ensure that annual gas safety checks are carried out and recorded for each appliance and flue. This type of work is deemed essential however, what steps should be taken where tenants and engineers are vulnerable or fall within the shielded category and how do the social distancing guidelines apply if there is a gas emergency? The Gas Safety Register has produced guidance on these issues and other scenarios that landlords may encounter.

Where gas safety checks are required but tenants, or members of their household, are shielding or are vulnerable, these checks can be delayed until after the period of self-isolation however, the inspection must take place as soon as the isolation period has ended.

In cases where tenants are showing no coronavirus symptoms and are socially distancing, reasonable steps must be taken to carry out the inspection. The engineer themselves should also conduct their own risk assessment as to whether it is safe for them to enter a home. Meticulous records should be maintained to show the attempts made by a landlord to arrange an appointment and record when risk assessments and inspections are carried out.

In the event of a gas emergency, every effort should be made by the landlord to comply with the existing regulations but social distancing guidelines must be observed. Engineers should only attend a property if they are showing no coronavirus symptoms and should ensure they abide by the guidelines issued by Public Health England on tradespeople working in tenants' homes. If an inspection is impossible, as the landlord's usual Gas Safe Engineer is unavailable or is showing coronavirus symptoms, then attempts should be made to secure the services of a different Gas Safe Engineer. Again, it is advised that meticulous records are kept of all attempts to secure access and all efforts to arrange an appointment once the isolation period has ended.

Whilst these scenarios have been envisaged for the carrying out of gas safety works, the guidance on keeping notes as well as respecting the requirement of social distancing will also be good practice in relation to complying with landlord's repairing obligations until these measures are no longer required. Further details of these guidelines and of other potential scenarios can be found here.

Supreme Court case law update: tenant alterations – Duval v 11-13 Randolph Crescent Ltd

On 6 May 2020, the Supreme Court handed down their judgment in what will become a leading landlord and tenant case.

The case concerned whether a landlord of a block of flats is entitled to give permission to one leaseholder in the block to carry out works that would otherwise fall foul of an absolute prohibition in their lease. The Supreme Court unanimously dismissed the landlord's appeal and agreed with Lewison LJ's judgment in the Court of Appeal – namely that the landlord could not authorise the structural works since (a) those works would necessarily breach an absolute covenant in the lease against 'cutting and maiming of walls' and (b) each of the building's other leases contained clauses entitling the lessees to require their landlord to prevent such breaches by taking enforcement action (known as mutual enforceability clauses). The Supreme Court upheld the Court of Appeal decision, that the landlord could not put itself in a position (by consenting to the proposed structural works) where it would later be unable to comply with a request from another leaseholder to enforce the covenant.

Mutual enforceability clauses are standard in most leases of blocks of flats, as are absolute prohibitions. As a result of this decision, unless all leaseholders in the block consent to a tenant acting contrary to an absolute prohibition, the covenant cannot be waived or relaxed by the landlord. Landlords will need to closely review applications from tenants, both for consent to alter and other activities, such as keeping pets at the premises, to identify proposals which breach an absolute prohibition in the lease and avoid granting consent in breach of their own obligations, as landlord, under the lease. Landlords should tread carefully; a full article is to follow.
Update on temporary ban on progressing statutory demands and winding up petitions

We reported on the recent measures to restrict the progress of statutory demands and winding up petitions against "high street tenants and other commercial tenants under strain" in our fifth edition and highlighted the need for further clarity. The measures continue to give rise to more questions than answers and landlords seek guidance to understand when they are able to proceed with enforcement action against tenants they suspect may have the funds to pay rent but are reluctant to part with them.

The only clarity provided so far is confirmation that the temporary measures apply to statutory demands served between 1 March 2020 and 30 June 2020 and winding up petitions presented from Monday 27 April through to 30 June 2020. It is possible that the measures will be extended beyond 30 June 2020. We await further details from the government such as how the Courts will assess whether a company is unable to pay its debts due to Covid-19 and which sectors of tenants the restrictions apply to. The Corporate Insolvency and Governance Bill, which will record the measures, is eagerly awaited but, notably, not yet listed for its first reading in the House of Commons.

Battle of the Fire Doors

It is great to see that the Government has set aside time to produce a draft Fire Safety Bill (which has had its second reading in the House of Commons), even amidst the current Covid-19 pandemic.

More particularly, for the purposes of this bulletin, the Fire Safety Bill seeks to clarify that building owners and managers of multi-let residential blocks will be responsible for the front entrance doors that open onto the common parts. The call for clarity has been loud and clear as there has been much criticism levelled at the uncertainties of various provisions contained within the current Regulatory Reform (Fire Safety) Order 2005.

Following the Grenfell Tower tragedy, there is a greater focus on the health and safety standards of residential tower blocks. This includes serious concerns levelled at the fire-retardant standards of front entrance doors in residential tower blocks across the country that may not be compliant with current fire regulatory standards.

Whilst the Government seeks to bring about legislative changes to clarify the fire regulation obligations on a landlord/managing agent, there seems to be an apparent conflict with the position set out in case law which could hinder the issues the draft legislation seeks to address. The timely Upper Tribunal decision in Fivaz v Marlborough Knightsbridge Management Ltd [2020] UKUT 138 (LC) (Fivaz) is a particularly good example of this.

In Fivaz, the question of whether the front entrance door of a flat was a 'landlord fixture' was dealt with. The First Tier Tribunal initially decided it was but the Upper Tribunal subsequently reversed this on appeal and held that it was neither a chattel nor a landlord fixture. It found in favour of the tenant who was not in breach of covenant by replacing the front entrance door. Fivaz stresses the importance of ensuring that the words in a lease are clear as to who exactly owns the front entrance door.

In our article, we have carried out a detailed review of this apparent conflict between the draft legislation and the common law position in light of the decision in Fivaz, and have explored the decision in Fivaz in more detail.

Insight from across the firm

In positive news this week

  • Today (7 May), the UK will be basked in the light of the last super moon of 2020: the 'Flower Moon' or 'Milk Moon'. Make sure you find a minute to look out the window or pop into the garden to enjoy it.
  •  Whilst the previously planned celebrations to mark the 75th anniversary of VE Day have been cancelled, Britons are being invited to take to their doorsteps at 3pm on Friday 8 May, to raise a glass and toast "To those who gave so much, we thank you." as part of The Nation's Toast to the Heroes of World War Two.
  • After a birthday flypast, an elevation to honorary colonel and of course raising almost £33m for the NHS (6,559% of his fundraising target), this week Captain Tom Moore was awarded the ultimate accolade: the prestigious Gold Blue Peter badge!
  • A drive in Arts Festival is underway in the Czech Republic, with festival goers showing their appreciation for performances with the enthusiastic honking of car horns, rather than the traditional applause.

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