I have inherited a tenanted residential property with no written tenancy agreement: is this a problem?

It is surprisingly common for personal representatives dealing with properties or those who have inherited properties to find that they have been left with a headache: the deceased has let the property to a tenant but no paperwork can be found documenting the arrangement. Invariably there is also no evidence of other legal requirements having been complied with. The absence of a written tenancy agreement is not of itself a problem and, unless one of the statutory exceptions applies (such as where the property is let at a very low rent), then an assured shorthold tenancy or AST will still have been created and this can be terminated in the normal way by service of a ‘no fault’ notice seeking possession (a section 21 notice) enabling the property to be sold with vacant possession. Alternatively…

What is undue influence when making a Will?

The Court of Appeal in the recent case of Rea v Rea has confirmed that a high bar must be reached in order to succeed with an undue influence claim in relation to the making of a Will. The background Anna Rea made a simple one-paged Will in 1986 leaving her estate in equal shares to her four children: daughter Rita and her three sons. In 2015 Anna made a new Will in which she left her property 5 Brenda Road (the largest asset in the estate) to her daughter Rita with the residue being divided equally between the four children. The sons contested the new Will and Rita brought proceedings to ‘prove the 2015 Will’ asking the Court to give it effect. Rita’s brothers challenged the claim saying that the 2015 Will was invalid…

Are you being a nuisance?

Falling out with your neighbours in rural areas is not uncommon. Farming activities are more than likely to cause smell, mud, noise, traffic problems or other disruption at some stage. However, if the impact of your farming operations on your neighbours is severe enough to amount to a nuisance, you could find yourself in a legal dispute and possibly having to defend a court claim which could be both expensive and time consuming. “There are three types of nuisances: private, public and statutory”, says Johanne Spittle, Director, Litigation & Dispute Resolution at Ware & Kay York, Wetherby and Malton. A private nuisance is caused when you do something (or don’t do something) on your land which you are entitled to do but which impacts on or extends onto your neighbour’s land. There are many situations where…

Christmas Farming Family Fall-Outs

Few things are more disconcerting than being told at Christmas, or any other time, that you don’t own something you think you do. In a farming context, this may cover a wide range of situations. For example, a dispute over whether farming assets are owned by an individual, or a farming partnership. In a succession situation, ownership disputes often relate to disputed inheritance of land. “To avoid misunderstandings, often created many decades ago, it is usually best to hold frank conversations, as early as possible, and, above all, write things down,” says Julie Bradwell. Associate in the Litigation Department at Ware & Kay in York, Wetherby & Malton. “The use of professionals particularly accountants, solicitors and others is very often invaluable in preventing later potentially catastrophic disputes amongst farming families”. However many people, even some solicitors…

Squatter’s rights: can you stop a squatter obtain ownership of your land?

If someone is occupying land that is registered to you, can they acquire rights over it and successfully apply to be registered as the owner? We are often asked this question by property owners where the boundaries between two properties on the ground do not match what is shown on the plans; sometimes this only becomes apparent where one of the property owners is looking to sell or develop and they then discover that there is an area of disputed land owned by one party but occupied by the neighbour (the squatter). There are two possible scenarios for registered land: the first is where ‘the squatter’ has been in uninterrupted ‘adverse possession’ of the disputed land for at least 12 years before 13 October 2003. This squatter can apply to be registered as proprietor and must…

Promises Promises Promises – Proprietary estoppel and the case of the Hughes family

In the recent case of Hughes v Pritchard and others the court dismissed a claim brought by the estate of one of the Deceased’s sons despite pre-existing findings that the deceased had promised that son the entirety of his farmland and that the son had relied on the promise. The Deceased Evan Richard Hughes died on 7 March 2017 aged 84 years. He was a cattle farmer with 137 acres of farmland and other property including a family building business. He had three children Gareth, Carys and Elfed; Elfed had tragically taken his own life in 2015. The Deceased had made three Wills in 1990, 2005 and 2016. By the 2005 Will he left his shares in the family business to Gareth and Carys and all his farmland to Elfed; the original trial judge found…

Renters (Reform) Bill: what does it mean for residential landlords?

The long awaited Renters (Reform) Bill has now been published by the government and it aims to change the landscape of rental housing in England One of the principal parts of the Bill is to abolish section 21 ‘no fault evictions’. Currently, landlords can recover possession of their let property after the fixed term has ended without having to prove any ‘fault’ or beach by the tenant. Under the new proposals the existing grounds for possession under S8 of the Housing Act 1988 have been extended so that there are provisions to enable landlords to recover possession if the landlord wishes to sell or a member of their family wishes to move into the property. The Bill also aims to strengthen the ability for a landlord to evict anti-social tenants. Other key changes include: Ending…

Covenant not to erect additional buildings did not stop the demolition and replacement of a building

In the case of McDonagh v Reeve [2023], the Court decided that the demolition of a property and its replacement with a substantially bigger building was not a breach of covenant. The parties in the case were Mr and Mrs McDonagh who owned Rose Cottage in Poole. The neighbour of the adjoining property was Karen Reeve.  Ms Reeve’s property had benefit of a restrictive covenant which was binding on Rose Cottage and provided that 'no additional buildings whatsoever' should 'at any time be erected' on the land. Mr and Mrs McDonagh applied to the Court for a declaration that their proposed demolition of the current building on their land and its replacement by a substantially larger building, for which they had received planning consent, would not amount to a breach of that covenant. The court…

'Like being on display in a zoo': what are the consequences of the Tate Modern court ruling?

The Fearn v Tate Gallery Supreme Court decision in February 2023 received considerable coverage in the press not least because of the high profile nature of the defendant. How much will this case impact on nuisance disputes between neighbours? The claim was brought by the owners of long leasehold flats in a development directly opposite the new extension of the Tate Modern. One of the features of the building was a viewing gallery which enabled visitors to see straight into flats with visitors frequently looking into the flats and taking photographs and, less frequently, using binoculars. The claimants applied to the court for an injunction requiring the Tate to prevent members of the public from observing their flats on the grounds of nuisance. They also claimed a breach of their rights under article 8 of…

Restrictive covenants revisited

In a recent case before the Upper Tribunal (Lands Chamber) Housing Solutions v Smith [decision 27 January 2023] the Tribunal allowed the applicant's application for the modification of restrictive covenants which restricted use of a site to parking of cars so as to permit housing development. Mr John Smith (founder of the Landmark Trust) owned a large area of agricultural land just outside Maidenhead. Adjoining it was a small industrial estate, whose owner, Stainless Steel Profile Cutters Limited (“SSPCL”) wanted to construct a car park; the layout of the estate provided a convenient triangle, and in 1972 Mr John Smith sold to SSPCL a further triangle so as to make a rectangle, known as the “Exchange House site”. In the conveyance SSPCL gave restrictive covenants for the benefit of Mr John Smith’s adjoining land which provided…