All posts by Bishop & Sewell

Leasehold neighbour disputes – what are the steps you can take?

Leasehold neighbour disputes – what are the steps you can take?

Noise nuisance is often an issue that arises between leaseholders causing much upset and, often, sleepless nights causing. The problem is compounded when neighbours have very different lifestyles and what noise level is reasonable for one might not be reasonable for another leading to neighbour disputes.

So, what steps can be taken if you feel your neighbour is being noisy?

In the vast majority of cases, it is best to approach your neighbour in the first instance to explain how the noise is affecting you and to encourage resolution in a way that will maintain good relations.

If your attempts to deal with the matter amicably do not prove fruitful then you should ensure that persistent noise nuisance is recorded in a noise diary so that the extent of the problem and its effect on you can be ascertained.

It may also be helpful to involve the local authority, who can send an Environmental Health Officer to attend your property and assess whether the noise amounts to a ‘statutory nuisance’ to which they can serve an abatement notice upon the perpetrators. In any event, the local authority may be able to measure the noise level, which is likely to assist in demonstrating the level of the nuisance and having the nuisance witnessed by an official.

Check your lease

If the local authority cannot take matters further, you should check your lease to see what protection from noise nuisance you have. In blocks of flats, leases between tenants will usually be in standard form and contain the same covenants. They usually contain covenants against causing nuisance to neighbours.

The lease may also contain a covenant that the landlord will take direct action against noisy neighbours. If that is the case, you may wish to discuss the matter with your landlord and present to them your noise diary and any evidence you may have as to the level of the noise nuisance.

The lease may also contain covenants to take sound deadening measures, such as having carpets or rugs installed in each flat, which if breached could be a matter for your landlord to pursue.

If your lease does not contain any obligations on your landlord to take action on your behalf, then you can take direct action yourself against your neighbour.

Mediation for neighbour disputes

Prior to considering court action, you may wish to suggest to your neighbour that you engage in a form of mediation. Indeed, courts have indicated time and again that mediation should always be attempted in such cases and take a dim view of any party refusing to partake in the process. If your neighbour is amenable to the suggestion of mediation, you may find it helpful to jointly instruct an acoustic consultant to advise on noise mitigating options that will prevent further dispute.

Private nuisance claims

Of course, if all else fails, then you may need to instruct a solicitor to discuss issuing court proceedings against your neighbour in private nuisance. For the claim to be successful the nuisance must be caused by a person doing something on their own land, which they are lawfully entitled to do, but which becomes a nuisance when the consequences of their act extend to the land of their neighbour causing, for example, interference to the enjoyment of the neighbour’s land. The interference must be substantial and/or unreasonable. As such, relatively trivial matters will not be successful.

The noisy neighbour will have various defences available to them, such as claiming that the complainant is ‘abnormally sensitive’ to such noise or that they have acted reasonably in dealing with the complaint.

As can be seen above, whilst there are remedies against noisy neighbours, dealing with the matter quickly and amicably is encouraged to prevent the problem escalating.

Anastasia Mavroudis is a Solicitor in our Dispute Resolution team.

If you are looking for assistance with regard to a property dispute matter, please contact one of our expert team on propertyexpert@bishopandsewell.co.uk or call 020 7631 4141.

 

Leaseholder’s pet treated ‘ruff-ly’ – management company forces leaseholder to remove dog from their flat

Leaseholder’s pet treated ‘ruff-ly’ – management company forces leaseholder to remove dog from their flat

The High Court has upheld an injunction demanding the removal of a Leaseholder’s pet, in this case a Yorkshire/Maltese terrier called ‘Vinnie’, from their leasehold flat. The story has captured the attention of the national and local press as it is one of the few times that a “no pets clause” in a residential lease has been litigated to such an extent.  

The case involves Mr & Mrs Kuehn (the Leaseholders) who purchased their penthouse flat in Limehouse, East London in 2015. The lease they bought (or more formally, took assignment of) contained a term stating:-

“”No dog, bird, cat or other animal or reptile shall be kept in the [Property] without the written consent of [the Management Company]”.”

Conveyancers will be familiar with this boiler-plate covenant (a term referring to a binding promise in a lease) as it appears in most long residential leases. In this case, rather than requiring the consent of the freeholder, it required the consent of the management company which was operated by the other leaseholders of the building, Victory Place Management Company Ltd (VPMC). Again, this is a common form of the covenant.

The Leaseholders’ claimed that when they bought the property they were told by the estate agent that their pet could stay, this turned out not to be the case.

Upon learning that the Leaseholders had brought their dog into the Property, VPMC obtained an injunction ordering the dog’s removal. In the Leaseholders’ appeal of this injunction, which went before the High Court on 25 January 2018, the issue raised was whether VPMC had compiled with its implied obligation to deal with the Leaseholder’s request reasonably. The argument advanced was that the blanket ‘no pet’ policy amounted to an illegitimate prejudgment of the issue and was unreasonable, using the test laid out in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation.

The High Court ultimately held that VPMC’s policy was not unreasonable or unfair. When considering the Leaseholders’ request, it was quite reasonable to take into account the views of the majority of the other leaseholders in the building (who all supported the ban). VPMC had said that it would have taken into account any pressing medical concerns, as in the case of support/service animals, but this was not the case in this matter. The High Court held that the initial injunction should remain, and the dog should be removed.

In its judgment, the Court decided on the balance of probabilities that …“Wednesbury principles applied to the way in which VPMC exercised its discretion under the Covenant. Otherwise, there would be a risk of tyranny by majority”. This point is of interest as it may have wider applications to similar covenants that have no express qualification on how a freeholder or management company is to exercise its discretion.

For the average flat buyer this case is a harsh reminder that while you may be told one thing about a property, unless it is supported by the lease, it may not be true. If you are buying a leasehold property you should always read and consider the terms of the lease carefully. If you have any enquires, bring them to your solicitor. As the legal fees for this matter have been reported to be in the range of £70,000, it is a point for speculation as to how much could have been saved if the Leaseholders had brought this matter to the attention of their solicitors before they exchanges contracts.

The full judgment of the case, cited as Victory Place Management Company Ltd v Kuehn & Anor (30 January 2018) can be read HERE.

At Bishop & Sewell, we have over 35 years’ experience in conveyancing, with a particular focus on Landlord & Tenant law. We know what to expect from other solicitors, but we always treat our clients as individuals with their own particular needs and concerns. We provide you with a dedicated conveyancing lawyer to ensure the best level of service from start to finish.

Charlie Davidson is a Solicitor in our Property team, dealing with both residential and commercial property

If you are thinking of buying leasehold property or you have any questions regarding your existing property’s covenants, please call 020 7631 4141 and ask for a member of the Property team or email mail@bishopandsewell.co.uk

This article is intended as a general summary on the law – no reliance should be placed on it without specific legal advice. 

 

Domestic abuse – what is it?

Domestic abuse – what is it?

We are all accustomed to thinking of physical abuse when the term domestic violence is used. The stereotypical black eye comes to mind, but since 2015 the definition of domestic abuse has been expanded for the first time, criminalising non-physical abuse which so often occurs in the domestic setting. This criminal offence recognises psychological and emotional harm which can result from a pattern of behaviour and the need to consider and deal with controlling or coercive behaviour in domestic (family or close) relationships.

Non-physical domestic abuse

Obviously, although the definition has been expanded, the challenge is being able to provide evidence of the behaviour because, unlike a physical injury, it may not be obvious or noticeable to others. However, this does not make it any less harmful.

The offence is concerned with repeated behaviour that has a serious effect on one person, either by making that person fear that serious violence will be used against them or by causing that person serious alarm or distress, which has a substantive and adverse effect on their usual day-to-day activities. The event is therefore designed to include a range of behaviours which, when taken altogether, seriously affect the victim due to their controlling or coercive nature. It is often happening behind closed doors and is largely undetectable. I have often felt that some of my clients have been living with this type of behaviour for many years, without even realising it. They know that something is not right but it would not have occurred to them that what they are experiencing constitutes a criminal offence. Even if pointed out to them, they will often not wish to take the matter further, but simply try to get divorced as soon as possible and move on with their lives. This approach is understandable and in many cases sensible, but the victim needs to be attuned to the fact that harm would have been caused to them and they may require some professional help to assist them in recovering.

Signs to look out for?

The guidance issued by the Home Office on this offence acknowledges that this is primarily “a form of violence against women and girls and is underpinned by wider societal gender inequality”. Generally, domestic abuse or coercive control can involve micro management of everyday activities quite often associated with women in their roles as home-makers, parents and partners. Examples of this behaviour can be controlling how the victim dresses, cleans, looks after the children and keeps the house. In order for this to actually constitute domestic abuse, the abuser’s demand must be linked with a believable threatened negative consequence if the victim doesn’t comply. Examples might be the infliction of physical violence or the withholding of finances or other resources. This means that the victim feels compelled to comply to avoid the negative consequences that are threatened. Sometimes the tactics of coercive behaviour are confused or misinterpreted as signs of affection or caring (think The Archers). So sometimes the isolation of the victim from friends and family and the policing of their behaviour and clothes can be seen as signs of love rather than jealousy. The context is very important.

The people involved in assessing, prosecuting and helping in these cases will need special training. They need to be able to understand both the behaviour of the perpetrator of the abuse and all about the harm that it inflicts upon the victim.

The first step has been taken, in recognising that this behaviour exists, and that it causes harm, and that something needs to be done about it. The next step will be to ensure that the proper training is in place and that these offences can be successfully prosecuted.

Louise Barretto is a Partner in our Family team.

If you would like to discuss any of the issues raised in this article, or concerning family relationship and divorce matters more widely, please contact Louise on 020 7091 2869 or another member of our expert family team by emailing family@bishopandsewell.co.uk.

 

Don’t like Mundy? – So why did the Court of Appeal reject this case?

Don’t like Mundy? – So why did the Court of Appeal reject this case?

The answer to the question as to why the Court of Appeal rejected the appeal in Mundy was never quite as simple as it might have first appeared.

Firstly, the appeal was on limited grounds – and if it had been successful then the outcome would have been that the case would be sent back to the upper tribunal for them to re-determine the case. They might well have reached the same decision again, even if the appeal had succeeded.

Secondly, the grounds for seeking an appeal were essentially two-fold. The initial point being that the tribunal should not have rejected the Parthenia model ‘out of hand’ – it had said that it should not be used in future cases. The other point, which might be seen as being bigger and more ‘difficult’ was the so-called “circularity” argument.

In reaching its original decision the Upper Tribunal had rejected or found as flawed many of the traditional graphs of relativity such as the Gerald Eve Graph – and had opted for the concept of adopting the Savills 2015 Enfranchiseable graph as being robust in its statistical background. The argument was therefore that all transactions over many years since the earlier graphs had been introduced had in fact been influenced by them and were ‘tainted’ as such that they should be disregarded. This was a big leap to ask the court to make and the Court of Appeal declined to see things this way.

So, what does all this mean?

Well, if you are a leaseholder with a lease under 80 years things are very much ‘as they were’ – there is no radical shift in valuation that will make the pain of extending any easier. In fact – and this won’t make me popular – you could well say that relativities were higher before the initial Parthenia case in the tribunal. In fact, the examination of all of the graphs that took place as a result of this model has actually led to higher relativities ,as a lot of the earlier graphs that had been available to use that showed higher figures have now been discredited.

The area of interest will be if the Government seeks to prescribe what the Court described as the ‘holy grail’ – a method of determining relativity that would be reliable and simple to apply. Whether this will in fact be found remains to be seen.

Mark Chick is a Partner and Head of our Landlord & Tenant team.

If you need expert advice on extending your lease or buying your freehold or indeed, property matters more widely, please contact a member of our Landlord & Tenant team on leasehold@bishopandsewell.co.uk or call 020 7631 4141.

 

Court of Appeal rejects Mundy Appeal

Court of Appeal rejects Mundy Appeal

The much awaited decision of the Court Of Appeal in the case of Adrian Howard Mundy v The Trustees of the Sloane Stanley Estate [2018] EWCA Civ 35 the so-called ‘Mundy case’ was handed down yesterday.

The outcome was a rejection of the application for leave to appeal the decision of the Upper Tribunal which had rejected the Parthenia model of calculating relativity.

The outcome of this decision has been much vaunted by parts of the press as having been the ‘great hope’ of leaseholders and that if the Court had granted leave that suddenly all relativities would have been calculated on a higher basis meaning that those with leases under 80 years would pay less to extend or buy their freehold. The truth is a little more complicated and more detail appears in the article below.

Mark Chick, head of the Enfranchisement team at Bishop & Sewell LLP commented as follows:

“Many had hoped that the Mundy decision would pave the way for lower premiums for flat owners with leases under 80 years. Sadly, this was not to be the case. The reasons are complex and as the court acknowledged the wider principles of how relativity is calculated may well be looked at by the Law Commission. However, for the moment there is no ‘holy grail’ (i.e. a simple and universal way of calculating relativity). Given that this is a complex valuation concept this is perhaps not entirely surprising.

What is interesting is that in the climate of the current debate on leasehold issues and the Government’s determination to look at other matters such as ground rents for new leases of flats and houses that there is no doubt further reform on the agenda and if the government does find the parliamentary time to commit to this, we are bound to see some changes in leasehold in the future.”

What is clear is that if your lease is under 80 years that the method of working out the marriage value is going to be approached by looking at the current accepted method – which is effectively either use of available current comparable transactions (adjusted to take account of the rights given by the 1993 Act) and or approaching the Savills 2015 enfranchiseable graph of relativity and making a deduction for the presence of these rights.

If you would like to discuss any leasehold issues then please contact our Enfranchisement team by emailing leasehold@bishopandsewell.co.uk

Read more: Don’t like Mundy? So why did the Court of Appeal reject this case?

Unreasonable insurance premiums?

Unreasonable insurance premiums?

Many a dispute arises between a landlord and tenant in the course of a tenancy, but probably none more so than those concerning service charge costs.

Disputes in this area have kept the Property Tribunals especially busy and the recent Upper Tribunal (Lands Chamber) decision in the case of Cos Services Ltd -v- Nicholson & anor [2017] adds further clarification in a service charges minefield.

The case

This particular case concerns the insurance premium for Chiltern Court, a purpose built, four-storey building comprised of sixteen flats and two external blocks of garages. The freehold of the property was owned by Cos Services Ltd, the landlord.

Ms Nicholson and Ms Willans purchased the long leasehold interest in flat 15, Chiltern Court in 2014. Typically, and in accordance with the lease, the landlord was obliged to insure the building against loss or damage by fire etc. the cost of which was recoverable by way of service charge against the tenants.

On the landlord’s case, it had spent the following amounts on the cost of insuring the building, which was fully recoverable from the tenants:

  • 2014/2015 – £12,598.20
  • 2015/2016 – £12,670.02
  • 2016/2017 – £11,150.02

Ms Nicholson and Ms Willans’ position was that the cost of the insurance premium was unreasonably high compared to other insurance premiums on the market. They duly applied to the First Tier Tribunal (Property Chamber) for a determination under section 27A of the Landlord and Tenant Act 1985 (“the Act”) as to whether or not the full insurance premium was recoverable.

Having considered the evidence, the First Tier Tribunal agreed with the tenants and determined that the landlord could only recover the following sums:

  • 2014/2015 – £2,803.10
  • 2015/2016 – £2,819.08
  • 2016/2017 – £3,017.65

The landlord (being heavily out of pocket), appealed the decision to the Upper Tribunal.

The law

In accordance with section 18(1) of the Act, a service charge is defined as:

“an amount payable by a tenant of a dwelling as part of or in addition to the rent –

  • Which is payable, directly or indirectly, for services, repairs, maintenance, improvements or insurance or the landlord’s costs of management, and
  • The whole or part of which varies or may vary according to the relevant costs”

In accordance with section 19(1) of the Act:

“Relevant costs shall be taken into account in determining the amount of a service charge payable for a period –

  • Only to the extent that they are reasonably incurred.”

In light of the above statutory provisions, the issue before the First Tier Tribunal was whether or not the insurance premiums claimed by the landlord from the tenants had been ‘reasonably incurred’. If they were not so incurred, the tenants would be ordered to pay only that which the tribunal deemed reasonable.

On appeal, the Upper Tribunal carefully considered what ‘reasonably incurred’ meant. Past case law, unfortunately, provided inconsistent answers. In the case of Forcelux Ltd v Sweetman [2001], for example, the judge found that the question was not whether or not the service charge item was necessarily the cheapest available, but whether it was reasonably incurred. The Tribunal would first need to consider whether the landlord’s actions were appropriate and properly effected in accordance with the lease, the RICS Code and the Act; and secondly, whether the amount charged was reasonable in light of that evidence. The Tribunal noted that the second point was particularly important because, if it did not need to be considered, it would be:

‘open to any landlord to plead justification for any particular figure, on the grounds that the steps it took justified the expense, without properly testing the market’.  

By contrast, the case of Avon Estates (London) Ltd –v- Sinclair Gardens Investments (Kensington) Ltd [2013], came to a different conclusion as to what ‘reasonably incurred’ meant. In that case, the Tribunal found that the landlord was not obliged to shop around at all in order for the costs to have been reasonably incurred. It was sufficient that the insurance contract was negotiated at arm’s length and in the market place no matter how high the insurance premium was.

In deciding the current case, the Upper Tribunal indicated its preference for the two stage test set out in the case of Forcelux Ltd. In particular, it found that the point of the Landlord and Tenant Act 1985 was to provide protection to tenants against costs that would otherwise be recovered contractually through leases. It was therefore right and proper to consider whether or not the cost of the work had been reasonably incurred.

In light of the above, the Upper Tribunal duly upheld the findings of the First Tier Tribunal in limiting the insurance premiums paid by the tenants to the landlord and dismissed the landlord’s appeal.

Choosing an insurance policy and premium

In accordance with the judgment set out in Cos Services Ltd, a landlord does not have to find the cheapest building insurance and premium on the market. It does, however, need to:

  1. consider the lease and the potential liabilities that are to be insured against; and
  2. be able to explain why they selected a particular policy and premium with reference to the steps taken to assess the current market.

The Tribunal further commented that, whilst it is open to a landlord to negotiate a ‘block policy’ to cover their entire property portfolio, it must ensure that such a policy has not resulted in a substantially higher premium that has been passed on to the tenants of a particular building without any significant compensating advantages to them.

Anastasia Mavroudis is a Solicitor in our Dispute Resolution team.

If you are looking for assistance with regard to a property dispute matter, please contact one of our expert team on propertyexpert@bishopandsewell.co.uk or call 020 7631 4141.

This article originally appeared in Flat Living Magazine (January 2018 edition).

The GDPR – five steps to compliance

The GDPR – five steps to compliance

 

If a client asks how you’re complying with GDPR, there are a few easy steps you can take … download our latest article for our five steps to compliance.

The GDPR – five steps to compliance PDF

For further information on this topic, or GDPR matters more widely, please contact Andrew Humphrey on ahumphrey@bishopandsewell.co.uk. or call 020 7631 4141.

 

This article originally appeared in GENIE, Gerald Edelman’s Winter Newsletter 2017

 

 

A less painful divorce

A less painful divorce

The first weeks of January are fabled to be the busiest time of the year for family lawyers with new enquiries flooding in. The reality is that divorce is never a step that is taken lightly and just because you may have had an awful Christmas with your spouse doesn’t put getting divorced to the top of your list of New Year resolutions.

January doesn’t tend to be busier than any other month, but some people will have consulted a lawyer towards the end of the previous year with the intention of “pressing the divorce button” after the Christmas holidays, especially if they have young children. Others may see the start of the year as the impetus they finally need to get out of what they consider to be a failed marriage.

Lawyers understand that divorce is a major step and likely to be traumatic. While some divorces are hard fought, they don’t have to be and a good specialist family lawyer can help limit the emotional pain with a number of tools available to help avoid acrimony. Counselling can help explore if the marriage can be saved, but if it can’t then this can help people come to terms with the end of their marriage.

The divorce itself has to be based on fault, either “unreasonable behaviour” or adultery, unless people are willing to wait until they have been separated for two or five years. It is good practice to try to agree the terms of the behaviour so that anything that is particularly contentious can be removed or toned down. When a petition is based on adultery the third party is usually not named. In most cases the divorce itself is a form filling exercise.

Resolving financial issues is more difficult because there is no set formula to apply and whatever advice you may receive from well-intentioned family and friends, they will not know how the law is likely to be applied. Very few cases go all the way to a final hearing and many will settle without a court application being issued.

The majority still settle by negotiation between family lawyers who will know the parameters of the case. There are also alternative dispute resolution methods available such as mediation and arbitration to help reach a resolution. When cases are more difficult then an application has to be made to the court. However, even then the court process includes a dispute resolution procedure with assistance from a judge to help both sides find a resolution. The cases that tend to go all the way to a final hearing are ones where one side has an unrealistic expectation of the outcome or there is a suspicion that money is being hidden.

Courts should always be viewed as a last resort for issues surrounding children. Mediation has a very high success rate in disputes involving children, with a good mediator helping both parents see the other’s point of view and helping them find a solution.

Legal advice at an early stage will help manage the entire divorce process and should give a realistic expectation as to the potential outcome.

Philip Rutter is a Partner in our Family team.

If you need expert advice on divorce matters, or family relationship issues more widely, please contact a member of our family team on family@bishopandsewell.co.uk or call 020 7631 4141.

This article was originally written for a New Year, New Start 2018 supplement for The Mail on Sunday published on 7th January 2018.

Business Lease Renewals are heading for the tribunal

Business Lease Renewals are heading for the tribunal

 

Under a pilot scheme recently announced, the First Tier Tribunal of the Property Chamber (formerly known as the Leasehold Valuation Tribunal) is going to hear cases relating to the renewal of business tenancies. The pilot scheme was initially scheduled to run for one year from 1 December 2017. HMCTS has advised us that the scheme will now commence in early 2018 but no official date has been set.

The Tribunal already has an excellent set of directions which are used for the renewal of leases under the leasehold reform legislation (predominantly the Leasehold Reform Housing and Urban Development Act 1993).

Where leases are renewed in relation to business premises under the Landlord and Tenant Act 1954, the standard procedure is for the case to be dealt with in the County Court.

There will be no change to the position concerning where proceedings are issued (this will still be at Court) but, as the lease renewal process is more of a negotiation than straight forward litigation, the more streamlined approach adopted by the First Tier Tribunal is likely to lead to the more efficient progress and resolution of these cases.

Stephen Charnock, Associate Solicitor, Landlord & Tenant team commented:

The Landlord & Tenant and Property Litigation teams at Bishop & Sewell are very familiar with the provisions relating to the renewal of leases and are experts at using the tribunal in relation to leasehold reform matters. It is good to see that HM Courts and Tribunals Service has decided to extend the good practice relating to the renewal of leases under the leasehold reform legislation to business tenancies and we welcome the suggested pilot.”

Bishop & Sewell have been involved in the discussions leading up to the pilot scheme and are on the tribunal’s frequent user group panel. This pilot scheme, together with the proposed ‘fused jurisdiction’ pilot that the tribunal service is also looking to run (relating to concurrent jurisdictions under the 1993 Act between the Court and the First Tier Tribunal) means that 2018 will be an exciting time for the tribunal service.

A short article on the subject appears below:

Unopposed  Business Lease Renewals

To discuss further any requirements that you may have, please get in contact with a member of the Landlord & Tenant or Property Litigation teams by emailing leasehold@bishopandsewell.co.uk.