Trowers' property litigation weekly update
In this week's bulletin we report on the long-awaited publication of the Renters (Reform) Bill, a significant ruling on an enfranchisement case involving the Ministry of Defence and a reminder of the need to keep draft Court judgments confidential. All of this is accompanied by our usual snapshot of positive news, quiz and insights from around the firm.
Seminar on Thursday 25 May 2023: Service Charge Symposium - building safety costs recovery under the new regime
First up, a reminder of the in-person seminar we will be running in London next week, hosted jointly with Cornerstone Barristers. Please see the invitation here if you would like to attend.
Renters (Reform) Bill – published
The Government's plans to end "no fault" evictions and make various other changes to the private rented sector have started their Parliamentary journey this week having first been announced in 2019. The Bill, if passed in its current form will introduce:
- A single system of periodic tenancies (abolishing fixed term assured tenancies and assured shorthold tenancies) which can be terminated by tenants on giving notice but can only be terminated by landlords by making out one of a number of updated grounds for possession.
- New provisions in relation to rent increases and tenants' ability to challenge these.
- New financial penalties for landlords in certain circumstances.
- Provision for new regulations to require residential landlords to join a landlord redress scheme.
- A new private rented sector database on which landlords will be required to register property and confirm compliance.
- A right to request permission for a pet in the property which a landlord cannot unreasonably refuse.
Please see our full article on the Bill here. We will keep you updated as it makes its way through Parliament.
Enfranchisement in the public interest
The recent high profile test case of R (Annington Property Ltd) & Ors v Secretary of State for Defence & Ors  EWHC 1154 (Admin) decided that the Ministry of Defence (MoD) was able to enfranchise eight homes used by military personnel under the Leasehold Reform Act 1967.
The case involved an examination of complex issues of public law and government decision making, previous case law on whether an underlessee can enfranchise to acquire a superior interest in circumstances where they or a connected company are the freehold owner, whether the MoD occupied the property demised by the underleases for the purposes of its business pursuant to the Landlord & Tenant Act 1954 and the effect of that on the right to enfranchise and the exercise of enfranchisement rights by Government departments.
The background to the case involved a sale and leaseback agreement that was entered into in 1996 between the MoD and Annington Property Ltd (Annington) in respect of homes used by military personnel. The MoD granted 999 year leases of over 55,000 residential units and received leasebacks of the units for 200 years at discounted rents which were subject to review. As time progressed and the rent review dates approached, it became clear that the arrangement was not going to be cost effective for the MoD and did not provide adequate protection for taxpayers who were ultimately footing the bill.
Aside from buy backs and termination clauses in the leases, one option for the MoD to extract themselves from the arrangement was the exercise of enfranchisement rights. As the rights being exercised were the same as those exercisable in the private sector, constitutional principles of decision making did not apply in the same way. The MoD was successful on all issues raised, the Court finding that the MoD was entitled to make enfranchisement claims.
This case highlights the wider consideration of the Courts as to the exercise of enfranchisement rights, not only as to perceived social justice but also in order to secure the best commercial arrangement in the public interest. This reflects the long running intentions of the Government in pursuing enfranchisement reform, which is on the horizon.
If you would like more information or have any questions on enfranchisement please contact William Bethune.
Judgment Embargo – A sobering reminder from the High Court
As most individuals who have been involved in litigation of some sort will be aware, it isn’t unusual for a draft version of a judgment to be circulated to the parties, specifically their legal teams, for the purposes of obtaining editorial changes (spelling mistakes etc) and where appropriate to enable the parties to prepare a draft order to give effect to the terms of the judgment. Draft judgments will always have an embargo as to their circulation and wider publication and the below is a cautionary reminder to abide by the terms of the embargo.
In the recent case of World Uyghur Congress v Secretary of State for the Home Department and others  EWHC 912(Admin) the draft judgment with the standard warning regarding the terms of the embargo was circulated to the parties legal teams for comment. The embargo made clear that "neither the draft itself nor its substance may be disclosed to any other person or made public in any way". It was made clear to the parties that any breach of the embargo may be treated as contempt of Court.
The Government Legal Department (the "GLD"), who acted for the Defendants in this matter, circulated the draft judgment (together with guidance on embargoed judgments) to a limited number of individuals at the respective government departments, reiterating the terms of the embargo and stating that the decision should not be share outside of those departments. However, a policy officer at HMRC (being one of the Defendants), sent an email to a wider group of individuals, including those in other government departments, without attaching the judgment itself but confirming that it would be handed down and that the result was favourable to the Defendants.
When the GLD became aware of the breach of the embargo, it contacted all recipients of the email to notify them that the email amounted to a breach of the embargo which would be reported to the Court. The day after, and a day before the judgment was to be handed down, the GLD wrote to the Court explaining that there had been a breach and providing detail as to how the breach had occurred. A supporting witness statement from the policy officer explained that he sent the email "acting on the mistaken assumption as to the nature of embargo judgments generally, and due to pressure of work".
Despite the breach, and to the relief of the policy officer one would imagine, the Court took no further action on the basis that:
(1) The GLD had taken all reasonable steps to ensure compliance with the embargo and there was no systematic failure;
(2) The GLD had acted quickly to detect and close down the breach; and
(3) The breach was down to a single individual and the breach had been acknowledged honestly and openly.
The Court made it clear that if the factors set out above were not in consideration then the outcome could have been very different and particularly serious for the policy officer concerned. The Court stated that, in issuing its judgment, the Court wanted to "assist lawyers in reinforcing the importance of these embargoes and the consequences that can ensure if they are breached".
Insights from around the firm
- Fixed charges – maybe absolute control is not necessary?
- "Qualifying lease" extensions – impact of the Building Safety Act 2022
- Short-term lets and holiday rentals: proposed new planning controls
New blood test for ovarian cancer could save "thousands"
A new study could see an advanced blood test used to detect early stage ovarian cancer across the West Midlands. The test will be offered to those experiencing symptoms of the cancer to try and identify the disease at an earlier stage and could potentially save "thousands".
Birth of a hatchling of an extinct bird at London Zoo
A Socorro dove in London Zoo has produced a hatchling. The bird is extinct in the wild, its captive population having been reduced to a single breeding pair in the last century. Numbers have been rising slowly and the birth of a new chick raises hopes that the doves, which once thrived on Socorro island, 600km off the west coast of Mexico, before being eradicated, could be restored to their former homeland.
The WHO have said that Covid-19 is no longer a "global health emergency"
The World Health Organisation (WHO) have declared Covid-19 is no longer a "global health emergency". This update reflects the progress made towards bringing the disease under control.