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Tag Archives: property litigation
Squatting and commercial property
We reported on on 1 September 2012 that squatting in a residential building has become an offence under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the Act”). Those found to be squatting in residential premises can now be fined a maximum of £5,000, imprisoned for up to six months, or both.
Generally those involved in squatting take the trouble to understand the law with regard to their unlawful occupation. They will be aware that commercial premises are not covered by the Act, so there is a real concern that they will now deliberately target commercial premises in preference to residential premises. Landlords of empty commercial premises – including shops, offices, light industrial, warehousing, or other commercial units should take steps to secure their premises and inspect them on a regular basis to prevent unlawful occupations taking place
Contact Julian Johnstone, Partner, and head of Druces LLP’s Litigation & Dispute Resolution team or Benjamin Lomer, Senior Associate for more information or in the event that you have an issue with unlawful occupiers of residential or commercial property.
London squatter jailed under new law
On 1 September 2012 squatting in a residential building became an offence under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the Act”). Those found to be squatting in residential premises can now be fined a maximum of £5,000, imprisoned for up to six months or both.
This offence was introduced to afford homeowners and lawful occupiers greater protection from squatters occupying their homes. The offence is limited only to residential property which includes any structure or part of a structure that has been designed or adapted as a place to live prior to its occupation by squatters. This includes permanent structures such as houses and flats and also moveable structures such as residential prefabs, park homes or caravans. The offence is committed when someone trespasses in a residential property with the intention of living there for a period. It does not apply to tenants who have accrued arrears of rent and only applies to those found squatting in premises on or after the 1st September 2012.
In this case Alex Haigh, Anthony Ismond and Michelle Blake were discovered squatting in a residential property in Cumberland Street having been residing there for approximately two months. They were arrested on 2nd September 2012 and pleaded guilty to the offence of squatting pursuant to the Act. Ismond was fined £100 and recalled to jail on a licence, Haigh was sentenced to 12 weeks in prison and Blake will be sentenced at a later date.
This case shows that the Court intends to utilise this offence as a deterrent to those intending to squat in residential premises and the Ministry of Justice has stated that it enables “quick and decisive action to protect homeowners”.
Herrmann v Withers LLP: negligence in the conduct of a property transaction
Summary: In the recent case of Herrmann and Another v Withers LLP  EWHC 1492 (Ch) the Court held that a firm of solicitors had wrongly advised their clients that the high value property they were purchasing had communal garden access rights. This advice was negligent and the solicitors were liable to their clients in damages.
Relevant to: Property owners, Legal practitioners
Oliver v Symons: Extent of a right of way
The Court of Appeal has ruled that, in the absence of evidence to the contrary, a right of way does not extend beyond the verges of the track over which it runs and does not include a right to swing space for wide loads extending beyond the verges of the track. The determination in the case of Oliver and another -v- Symons and Another  EWCA Civ 267 provides useful guidance as to how the Courts interpret the extent of rights of way. Please speak to Julian Johnstone, Partner and Head of Druces LLP’s Litigation & Dispute Resolution team for further information and read our briefing note below.
Injunctions to prevent future harm (quia timet) and costs: Islington v Elliot
Summary: In the case of London Borough of Islington v Elliot and another  EWCA Civ 56 the Court of Appeal allowed Islington’s appeal against an order of the High Court that it should pay the claimants’ costs. The claimants had sought an injunction requiring Islington to take action to prevent nuisance from encroaching tree roots where no physical damage had yet occurred. The case provides useful guidance on the approach taken by the Courts to quia timet injunctions, injunctions intended to prevent future threatened wrongful acts or harm and also in relation to compliance with pre-action protocols and costs. Please speak to Julian Johnstone, Partner and Head of Druces LLP’s Litigation & Dispute Resolution team for more information and see our briefing note below.
Relevant to: Landlords, tenants, litigants, legal practitioners
Priority between charging orders and prior beneficial interests in property
Charging Orders allow judgment creditors to secure judgment debts against property. However the security is limited and this has been highlighted in the recent case of Hughmans Solicitors v Central Stream Services Limited , where a charging order was found not to have priority over a prior unregistered beneficial interest in the property. Speak to Julian Johnstone, Partner in Druces LLP’s Litigation & Dispute Resolution team and see our briefing note below for more information:
Pre-Action Protocol for Disrepair claims in commercial property comes into force
Dilapidations claims involve the resolution of tenants’ obligations to repair and decorate the property let to them, usually at the end of their lease. The tenants’ obligations to repair and decorate are normally set out in covenants contained within their lease. A failure to comply with those covenants may give the landlord a claim for damages.
A pre-action protocol for dilapidation claims was introduced by the Property Litigation Association in 2002 to help parties resolve claims before the issue of legal proceedings. The protocol sets out the information that a landlord is expected to give the tenant about the claim and the information that the tenant is expected to give in response. The protocol was subsequently endorsed by the Royal Institution of Chartered Surveyors (RICS) as ‘best practice’, and has been adopted and employed ever since by both surveyors and property litigation practitioners.
The snappily entitled “Pre-Action Protocol for Claims for Damages in relation to the physical state of commercial property at termination of a tenancy (The “Dilapidations Protocol”)“ is now formally adopted as a pre-action protocol under the Civil Procedure Rules pursuant to the 58th Update on 6 April 2012, although as yet the protocol has not been published by the Ministry of Justice website on the Civil Procedure Rules pages. The formal adoption means that compliance with the protocol is more important than ever as conduct can now be assessed by a Court when considering the question of costs.
Administrations: Landlord and Tenant update
Summary: Richard Baines, Head of Druces’ Business Turnaround, Restructuring and Insolvency team, looks at the recent Court decisions relating to the impact of administrations on landlords and tenants, in an article first published in the InHouse Lawyer magazine in February 2012
Relevant to: Administrators, landlords and tenants
Occupy London protestors denied appeal hearing by Court of Appeal
The Court of Appeal today has rejected Occupy London protestors’ application for permission to appeal against an Order for possession of parts of St Paul’s Churchyard made in favour of the Corporation of London in January. The ruling leaves the Corporation of London free to evict the protestors if the protestors refuse to give up possession in compliance with the Order. The Court of Appeal found that the protestors had raised no arguable case in their application for permission to appeal.
The Civil Procedure Rules require a party which wants to appeal to apply first for permission to appeal. The purpose of the rule is to weed out unmeritorious appeals, often previously made by litigants in person, which otherwise might clog up the Court of Appeal and delaying the hearing of substantive appeals.
Druces’ Litigation & Dispute Resolution team is experienced in dealing with contested Orders for possession in relation both residential and commercial premises (speak to Julian Johnstone, Partner, for more information) and in dealing with applications and appeals to the Court of Appeal (speak to Marie-Louise King, Partner for more information)
Undue influence and the scope of Solicitors’ duties: Padden v Bevan Ashford
Summary: In Padden v Bevan Ashford Solicitors the Court of Appeal has considered the scope of solicitors’ duties in advising clients in respect of the purpose and effect of transactions, particularly in respect of transactions where there may be a suggestion of undue influence. The case is of particular relevance to practitioners advising clients in respect of mortgage transactions. Julian Johnstone, Head of Druces’ Litigation and Dispute Resolution team, considers the decision
Relevant to: Legal Practitioners, Mortgagors and Mortgagees