Property litigation weekly update – 10 June 2022


This week we cover remediation orders under the Building Safety Act 2022, as well as case summaries concerning injunctions to prevent the mooring of boats along the River Thames, and the novel application of the remedy of rescission to unravel a joint tenant's notice to quit. All this alongside our usual round up of insights from around the firm and some positive news.

Remediation Orders under the Building Safety Act 2022

The Building Safety Act 2022 introduces a number of new legal remedies that are intended to ensure that developers and landlords fix building safety defects on existing blocks of flats.

One of the most eye-catching remedies is the remediation order, which comes into force as an available remedy on 28 June 2022. A remediation order can be made by a First-tier Tribunal on the application of an interested person, requiring the landlord to remedy building safety defects on a relevant building by a specified time. Relevant buildings falling within the scope of the remedy are buildings containing at least two dwellings that are at least 11 metres or 5 storeys high (but excluding leaseholder-owned freeholds).

Interested persons who will be able to apply for remediation orders include the newly created Building Safety Regulator, local authorities, fire and rescue authorities, as well as any person with a legal or equitable interest in the building (e.g leaseholders).

The Government has now published draft regulations, the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022, confirming that the Secretary of State will also be an interested person, potentially paving the way for the Government to use remediation orders to enforce remedial works. The draft regulations also specify that remediation order applications must identify the building to which it relates, identify the defects sought, and identify the landlord which the applicant considers is responsible for repairing or maintaining anything relating to the relevant defects.

Landlords and leaseholders of affected buildings will need to consider the availability of this new remedy when considering how existing building safety defects are to be resolved.

Injunction granted by High Court preventing mooring of boats along the River Thames 

In Kingston-upon-Thames RLBC v Salzer [2022] 5 WLUK 344, a local authority successfully obtained an interim injunction to prevent the respondent from mooring boats along a stretch of the River Thames. The interim injunction was granted even though the boats were part of the respondent's boat hire business which was his only source of income.

The Court granted the injunction because they considered the local authority met the test, namely (a) there was a serious issue to be tried, and (b) on the balance of convenience an injunction should be granted.

As to whether there was a serious issue to be tried, the Court considered that there was a good enough argument that the disputed strip of land was within the local authority's possession and control. This was either because it was public highway or because it was included in a sublease held by the local authority, in which the local authority had covenanted that they would take action to prevent the illegal or permanent mooring of boats along the riverside.

In relation to the balance of convenience, the Court considered the health and safety risks of not granting the injunction and allowing the moorings to continue, as against the effect the injunction would have on the respondent's livelihood. It was accepted that if the injunction was granted, the respondent company would likely become insolvent. However, evidence was given to the Court that showed the respondent had historically failed to cooperate with health and safety inspections and that the local authority had a record of issues which caused potentially serious health and safety concerns. The Court also took into account the fact that the local authority's landlord was seeking to enforce the terms of the underlease. On this basis, the Court considered that the benefits of granting the injunction outweighed the possible harm which would be caused to the respondent.

The local authority was not required to give a cross-undertaking in damages as the Court considered it would be in a position to pay any damages ultimately awarded.

The case is a useful reminder of the factors a Court will take into account when deciding whether to grant an interim injunction. In particular, it is a useful insight into the importance a Court places on both the protection of proprietary interests as well as the health and safety considerations for third parties.

Joint tenant's notice to quit rescinded by Court

The High Court has rescinded a notice to quit served by a joint tenant in the case of Procter v Procter and others [2022] EWHC 1202.

The case concerned a long-running dispute over the ownership of agricultural and non-agricultural land between three siblings, in which the Court of Appeal had previously determined that the three siblings were joint tenants of a periodic agricultural tenancy which was being held on trust for a partnership of which only two siblings were the partners. Following this determination, the other sibling served a notice to quit to determine the tenancy against the wishes of the two partners.

In determining whether the notice to quit was valid, the Court first ruled that a single joint tenant could validly serve a notice to quit.

The further key questions were whether the joint tenant owed fiduciary duties in connection with the tenancy as one of the trustees of the Partnership extending to the service of a notice to quit; whether service of such a notice was a breach of fiduciary duty; and if so whether the Court could and should “undo” service of the notice.

The Court considered that the sibling did have a fiduciary duty to act in the best interests of the Partnership and not out of self-interest, which she had breached by serving the notice to quit.

As to how the Court should remedy this, since a notice to quit cannot be withdrawn once served the Court held that an appropriate remedy was to make an order for rescission of the notice to quit. This equitable remedy is usually available for both breach of contract and breach of fiduciary duty. This essentially had the effect of setting aside the notice to quit while allowing the periodic tenancy to continue uninterrupted.

The case is notable as it shows that the Court will award the remedy of rescission in circumstances where the party serving the notice to quit was duty-bound to continue the tenancy. It remains to be seen whether the remedy of rescission could now be used to remedy service of a notice to quit in wider factual circumstances where a breach of fiduciary duty can be established.

Insights from around the firm

Positive news

  • World's largest plant identified: Scientists have discovered that a large underwater seagrass meadow in Shark Bay, Australia, is in fact one plant. At 77 square miles, the plant is three-times the size of Manhattan and could be 4,500 years old.
  • New cancer treatment protein discovered: A protein that destroys hard-to-treat cancers has been discovered by scientists, offering hope of effective new treatments. Experiments on mice and human tissue found it is effective against the most aggressive tumours. The compound, known as ERX-41, leaves healthy tissue unscathed. It is one of the most promising breakthroughs to date, offering hope of a ‘one size fits all’ pill that was once thought impossible. Results were so encouraging that clinical trials are expected to begin in the next few months.
  • Rats trained to assist earthquake survival: Rats are being trained to be sent into earthquake debris wearing tiny backpacks so that rescue teams can talk to survivors. The innovative project is being worked on by 33-year-old research scientist Dr Donna Kean from Glasgow and so far seven rats have been trained.  Specialist backpacks containing microphones and video gear as well as location trackers will be created and placed on the specialist rats to allow rescue teams to communicate with survivors during real earthquakes.

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