Property litigation weekly update - 12 November 2020


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In this week's bulletin we report on the effect of the second lockdown on evictions and a landlord's repairing obligations, the Supreme Court's recent ruling on a breach of restrictive covenants and a recent case update on terminating a deceased tenant's tenancy. All this, alongside the recent insights from our colleagues around the firm and some positive news.

Update on Evictions and Repairs during Lockdown 2.0

Evictions:

On 5 November 2020, the Government issued a press release, confirming that no evictions will take place whilst national lockdown restrictions are in place, except for the most egregious cases such as anti-social behaviour.

Further detail in respect of these egregious cases was set out by the Lord Chancellor, Robert Buckland QC, in his letter to the High Court Enforcement Officers Association. In summary, High Court enforcement officers should not attend residential properties during the current lockdown in England, for the purpose of enforcing a writ of possession or restitution, including serving notice of enforcement, except in the following limited circumstances:

  • Illegal squatting or trespassing by "persons unknown";
  •  Nuisance or anti-social behaviour;
  • Domestic abuse;
  • Fraud or deception; and
  • Properties unoccupied following the death of a Defendant.

 Repairs

The Government has confirmed that repairs during the second lockdown should still be undertaken, provided they are in line with public health advice (included but not limited to: social distancing, use of PPE, etc) and the relevant coronavirus legislation.

Therefore, landlords should continue to ensure that repairs are carried out at a tenant's property, as required, to avoid any risk of a disrepair claim being brought by the tenant.

The Supreme Court's ruling and development carried out in breach of restrictive covenants – a stark warning: Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45

Developers should take note of a recent Supreme Court judgment, delivered on 6 November 2020. This was the first time the highest court has been asked to rule on section 84 of the Law of Property Act 1925. Section 84 confers a power on the Upper Tribunal to discharge or modify restrictive covenants affecting land on five statutory grounds. The relevant question in this case was whether the restrictive covenants, by impeding a reasonable user of land, were contrary to the public interest and ought therefore to be modified to allow the development.

A developer had built affordable housing in knowing breach of the restrictive covenants benefitting a neighbouring landowner, Alexander Devine Children's Cancer Trust. The Upper Tribunal considered that the relevant ground for modification of the covenants was made out and ordered modification to allow the development, subject to the payment by the developer to the neighbour of £150,000 by way of compensation. The land was subsequently sold to Housing Solutions Limited. However, the Supreme Court (and the Court of Appeal before it) overturned the decision of the Upper Tribunal.

The Supreme Court drew attention to the availability of unburdened land within the developer's land portfolio which could have been utilised for the development instead, and that, as such, the housing developer would have been unlikely to satisfy the "contrary to the public interest" ground under s.84 had it applied to modify the restrictive covenants before building on the application land.

This decision is a stark warning for developers. The approach of the higher courts in this case highlights the importance of developers seeking to discharge restrictive covenants before commencing works and possibly even before planning permission is obtained.


Much needed clarity on how to end tenancy of deceased tenant: Gateway Housing Association v (1) The Personal Representatives of Mohammed Nuruj Ali (deceased) (2) Delara Begum [2020] EWCA Civ 1339

The Court of Appeal has clarified the correct procedure to follow when ending the tenancy of a deceased tenant.

As highlighted by this case, when a tenant dies, their tenancy does not die with them. As an assured tenant is no longer occupying their property as their only or principal home, their tenancy ceases to be assured but continues as a contractual tenancy. As most tenants die without making a will, that tenancy vests in the Public Trustee (PT). This therefore means that a Notice to Quit (NTQ) must be served on the PT and once receipt of this has been recorded, the tenancy terminates.

In this particular case, Gateway Housing Association (Gateway) served a NTQ addressed to the Personal Representatives of Mr Ali (the deceased tenant) by first class post on 15 October 2018. This was deemed served on 17 October 2017. However, the NTQ was not sent to the PT until 18 October 2018 and deemed service would have been 22 October 2018.

Miss Begum, the Defendant who was still residing in the deceased's property, raised various defences including challenging the validity of the NTQ. She argued that there were effectively two notices, one served on the Personal Representatives and one on the Public Trustee. As the NTQs would have expired on different dates (each NTQ contained a saving provision which stated that it expired four weeks from service), Miss Begum argued the claim should be dismissed. This argument succeeded in the County Court and, permission to appeal having been given to Gateway, the case leapfrogged straight to the Court of Appeal.

In the Court of Appeal, arguments centred around the practicalities of serving a NTQ on the Personal Representatives of a deceased tenant (which is effected at the tenant's last known address i.e. the tenanted property) and ensuring that the NTQ reaches the PT at the same time. Miss Begum argued that if Gateway was concerned about this then it should arrange for personal service of the NTQ on the PT. The Court of Appeal thought that this was "impractical and unrealistic" and found in favour of Gateway. It was held that the original NTQ served on the Personal Representatives of the deceased was the operative notice and that provided the copy was served on the PT before the NTQ expired, the copy was validly served on the PT.

This has cleared up an issue that has for some time been a concern for social landlords in particular when sending NTQ's to the PT. It is still advisable to send the NTQ to the PT on the same day that it is served on the deceased tenant's Personal Representatives so that plenty of time is allowed for it to arrive before it expires.

Insights from around the firm

Positive news

  • Scientists at Pfizer and BioNTech have developed a vaccine that appears to offer 90% protection against Coronavirus. Whilst the final data is yet to be released, the results are being hailed as a "great day for science and humanity".
  • The Queen is set to celebrate her 70 year reign on 6 February 2022. Plans are underway to mark the Queen's Platinum Jubilee with a four-day weekend in June 2022.
  • Following Marcus Rashford's campaign for free school meals for children over the winter holidays the government have pledged a winter grant scheme to be distributed throughout councils, 80% of which will be reserved for supporting struggling families with food and bills.
  • A Plymouth couple have been reunited with their wedding album which had been lost for over 20 years. The photograph album of Colin and Helena Hutt's special day was found by Vi Shawyer in her Plymouth home. She then posted about it on a local Facebook group. The couple were reunited with the album after it was shared nearly 8,000 times. It is the only record of their wedding and was lost after a move during Mr Hutt's career in the police.
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