Property litigation weekly update – 8 October


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Members of the team this week have reported on possession of new forms and old notice periods, rebranding of the MHCLG and a recent High Court judgment concerning landlord's liability to a tenant for failure to inspect or repair premises remaining under its control. All this alongside the recent insights from our colleagues around the firm together with a dose of positive news!

Possession – New Forms and Old Notice Periods

The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 came into force on Friday 1 October 2021 returning notice periods for section 8 and section 21 notices to pre-pandemic levels with immediate effect. This will reduce the notice period to 2 months for a section 21 notice and 2 weeks for a section 8 notice relying on grounds 8, 10 or 11.

With the amendment to notice periods comes a new version of the prescribed form of wording for both section 21 (Form 6A) and section 8 (Form 3) notices. A link to the new forms can be found here. It is important to note these changes will not apply retrospectively, and any notices served prior to 1 October must comply with the relevant Form 3 or Form 6A and notice period at that time the notice was served.

Also of importance to note is that Practice Direction 55C remains in force until 30 November 2021 and requires claimants to serve a reactivation notice for possession claims brought before 3 August 2020 where the proceedings were stayed as a result of the pandemic. The reactivation notice must state the claimant's knowledge of the effect of the pandemic on the defendant and a rent statement for the two years preceding the reactivation notice (if the claim is based on rent arrears). Claims brought on or after 3 August 2020 do not require a reactivation notice, however, the landlord must still provide notice of any knowledge of the effect of the pandemic and state how they have complied with the Pre-Action Protocol for Possession Claims by Social Landlords (if the landlord is a social landlord).

This will be positive news for landlords; however, the government has extended the period in which they can further amend notice periods until 25 March 2022 therefore the severity of the pandemic will still be the deciding factor in any future amendment of notice periods in residential possession cases.
 
Levelling Up…

The Ministry of Housing, Communities & Local Government (MHCLG) has been rebranded and will now be known as the Department for Levelling Up, Housing and Communities (DLUHC).

The Department's non statutory guidance note for landlords and tenants in the private and social rented sectors has been updated (with effect from 1 October 2021) to reflect the latest changes to procedure in the context of coronavirus (as referred to above). The note contains some useful information on notice periods, court process and priority cases. DLUHC has also updated its note giving Technical guidance on eviction notices.
 
Stonecrest Marble Limited v Shepherds Bush Housing Association Limited [2021] EWHC 2621 (Ch)

In its recent judgment concerning damage caused by water ingress, the High Court considered the circumstances in which a landlord may incur a liability to a tenant (in tort of nuisance or negligence), as a result of its failure to inspect, clean or repair parts of the building remaining under a landlord's control. The High Court also considered whether such liability can be incurred under an express term in the lease for breach of quiet enjoyment.

The tenant, Stonecrest Marble Limited (Stonecrest), had first notified the landlord, Shepherds Bush Housing Association Limited, of water ingress into its' property back in 2017. Subsequently, there was further water ingress into the property which caused significant damage so as to render the property unfit for the permitted use. The cause of the water ingress was identified to be a blocked rainwater downpipe which led to overflowing the gutter during periods of heavy rain.

The tenant alleged that even though the lease did not contain an express clause requiring the landlord to give quiet enjoyment to the tenant, the same was implied by virtue of the demise. Furthermore, the tenant claimed that the landlord had breached the implied quiet enjoyment provision or, alternatively, was liable at common law under the tort of nuisance/negligence for allowing the rainwater downpipe to become, and remain, blocked as a result of which the property was repeatedly flooded and became materially unusable by the tenant.

Pursuant to the lease, the landlord was not obliged to carry out any repair where the need for it had arisen by reason of damage or destruction by a risk against which the landlord was not obliged to insure. The landlord's insurance policy expressly excluded indemnification in respect of damage caused by wear and tear or gradual deterioration, or omission by the landlord.

Upon considering the terms of the lease in detail and applicable case law, in dismissing the tenant's claim the High Court held that:

  • The terms of the lease excluded the landlord's liability towards the tenant to inspect, cleanse and/or maintain the guttering at the building of which the property formed part;
  • The landlord was not legally obligated to take steps to inspect and clear the guttering at the building of which the property formed part so as to prevent any nuisance to the property; and
  • For the purposes of the rent suspension provisions in the lease, the landlord was not obliged to insure against the risk of damage to the property by water ingress caused by the gradual accumulation of debris in the gutter.
    This case is an example of how a professionally drafted lease and insurance policy together can effectively exclude any liability that the landlord might otherwise be subject to in relation to the retained parts.

Insights from our colleagues around the firm

Positive news stories

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  • Dewey the dog is freed after being trapped in a 30-foot cavern for 2 weeks
  • UCL launches its Taxi Brains project using London's black cabbies to study dementia and Alzheimer's disease.
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