Happy New Year from the Property Disputes Team! What to expect in the year ahead

Business tenancies 2022 promises to continue to be a time of change for commercial landlords. Protected rent debt The government aims to pass the Commercial Rent (Coronavirus) Bill 2021-22 by 25 March 2022.  The Bill will ring-fence rent debts built up as a result of mandated business closures during the COVID-19 pandemic and introduce a new binding arbitration process aimed at resolving disputes relating to ‘protected rent debts’ where landlords and tenants have not been able to reach agreement on how those debts should be dealt with. A rent will be protected if the tenancy was adversely affected by coronavirus and was subject to a closure requirement during the period (England only) from 26 March 2020 to 11.55pm on 18 July 2021. Landlords who issued court claims for these rent arrears on or after 10 November…

Court of Appeal finds restrictive covenant preventing redevelopment unenforceable: the case of Bath Rugby Ltd v Greenwood and others

On 21 December 2021, the Court of Appeal handed down judgment in this case concerning the enforceability of a restrictive covenant contained in a 1922 conveyance. The appeal to the Court of Appeal was over whether an area of land in Bath known as the Recreation Ground, commonly called "the Rec" and formerly part of the Bathwick Estate was still subject to a restrictive covenant imposed in a conveyance of the Rec made on 6 April 1922. The claim was brought by Bath Rugby Ltd ("Bath Rugby"), which has a lease of part of the Rec and who wished to replace its existing stadium with a new, larger stadium incorporating various retail and commercial outlets, with associated car parking. The land was subject to an old restrictive covenant that nothing should be "erected, placed, built or…

Financial “Abuse” of the Elderly and the Lasting Power of Attorney

It’s often thought useful to create a Lasting Power of Attorney, in case you lose capacity. Close family or trusted persons might otherwise be unable to access your bank accounts, sell your property etc., without the cost and delay of applying to the Court of Protection, to appoint a deputy, to manage your affairs, if you suddenly lost capacity. But there are down sides writes Julie Bradwell, Dispute Resolution Solicitor with Ware & Kay.  “I often see siblings at war, who have lost trust in close family members, often brothers and sisters and allege the sibling, appointed Attorney, under a Lasting Power of Attorney, is taking unauthorised money from their loving parent’s bank accounts for themselves. Equally, there are tragic cases of parents who genuinely wanted to make a generous financial donation to their adult child…

Should I start a Christmas Tree Farm on my land?

From offering holiday accommodation to selling Christmas trees, astute farmers are finding ways to create new income streams. Income generated by diversification is now a vital part of many farming businesses but it can involve unfamiliar legal, planning, staffing plus health and safety issues. Taking time at the outset to identify and address those issues can avoid costly disputes further down the line says Head of Dispute Resolution at Ware & Kay Johanne Spittle. Before you embark on a new diversification project it is important to check whether there are any restrictions on how you use your land and that you carefully consider the potential impact that a new venture may have on your neighbours. Where your land has previously formed part of a larger estate which was divided up, it is possible that the original…

“One Day the Farm Will All Be Yours”

As a child, I was oblivious to Uncle Len’s misfortune. During a lifetime working on the land and loyal service to the landowner, he was promised, by his employer,  the land and house in which he lived, would be left to him in his employer’s Will.  Uncle Len never doubted this promise and in reliance, failed to make provision, should he be let down. The trust he placed in that assurance of future inheritance, also took away his motivation to pursue other opportunities for better employment, training, or further education. When his employer died, his Will left nothing to my uncle. He and my aunt had to leave the house which had been their home for decades, promised would be theirs one day. They did nothing further about the matter. How radically different my uncle and…

Normal Service is resumed: the end of Coronavirus Residential Possession Notice Periods

New Regulations which come into force on 30 September 2021 (The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021) mean that from 1 October 2021 the notice periods for Notices Seeking Possession of residential properties let on assured tenancies and assured shorthold tenancies will revert to pre pandemic periods. This means that landlords serving Section 21 notices will from 1 October 2021 only need to give 2 months’ notice that they require possession. Landlords serving Section 8 notices where they are relying on unpaid rent grounds (Grounds 8, 10 and 11); deterioration of the property (Ground 13); damage to furniture (Ground 15); other breach of a tenancy obligation (Ground 12) or a false statement that induced the landlord to grant the tenancy (Ground 17) will be able to return to giving…

Court Fees are set to increase from 30 September 2021

Court fees are set to increase as the government seeks more to fund the Court and Tribunal service.  The Government launched a consultation in March 2021 on increasing selected Court fees and help with fees income threshold in line with inflation, and to backdate increases to feed by inflation to 2016 (the last year that fees were increased). It is estimated the change will raised up to £17m extra every year for HM Courts & Tribunals Service and reduce the burden on the Treasury for funding the system. There were 89 responses to the consultation period. Respondents were split on whether they agreed with the proposal that fees should be increased periodically in line with inflation. 61% of respondents disagreed with the proposal to apply inflation (backdated to 2016 or the year the fee was last…

Common probate disputes and how to avoid them

Tussles over a deceased loved one’s belongings are sadly not uncommon. Unpleasant in all situations, such disputes can be particularly problematic for farming families as it may mean the farm having to be sold or split up. Johanne Spittle, Director of Litigation and agricultural law specialist at Ware & Kay Solicitors in York and Wetherby outlines some common causes of probate disputes and provides guidance on how best to avoid them.  Probate is the process by which an estate is distributed under the terms of a Will after someone has died. Disputes can emerge for a variety of reasons during this process, but some common reasons in a farming context, include: the lack of a Will; an invalid Will; an outdated Will; a Will that was prepared close to death; lack of clarity on farm…

Implications of the new Debt Respite Scheme Regulations for Landlords

The Government has recently published guidance on a breathing space for debtors that will come into effect on 4 May 2021: The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020. As a creditor, if you are told that a debt owed to you is in a breathing space, you must stop all action related to that debt and apply the protections. These protections must stay in place until the breathing space ends. There are two types of breathing space: a standard breathing space and a mental health crisis breathing space. Both have the same effect to prevent creditors from taking action to recover qualifying debts while the Regulations are in force. A standard breathing space is available to anyone with a problem debt and will give them legal…

When can you refuse a bad commercial tenant a new lease?

The court provided useful examples of the sort of conduct that might allow a landlord to refuse a new lease, even though the tenant has security of tenure under the Landlord and Tenant Act 1954 (“the Act”). The judgment can be found here. Background When granting most leases to be used as commercial premises, the landlord and tenant need to agree to follow a special procedure, known as ‘contracting out’, otherwise the tenant’s lease will not end at the end of the period stated in the lease. The lease is continued by law and the tenant has a right to apply to the court for a new lease, if terms cannot be agreed. The landlord can only end the lease under certain circumstances set out in the Act. The most common are that the landlord wishes…