Commercial Property

The Supreme Court has ruled that, for the purposes of succession, a Council flat tenancy held by a tolerated trespasser can be revived.

The case involved a trespasser of a flat who was tolerated, not a tenant!

He had lost a secure tenancy when the Court granted a Possession Order against him.  The Landlord Council, the London Borough of Southwark, argued there was no tenancy to which anyone could succeed.

However, the tolerated trespasser, unfortunately, was terminally ill.  His brother moved into the Council flat to look after him.

The brother, Barry Austin, resisted attempts by the Council to evict him.  He lost in the lower Courts and the Court of Appeal.  However, the Court of Appeal ruled that where a former tenant died as a tolerated trespasser, the person seeking to succeed to the tenancy could apply to the County Court to postpone the date for possession.

If the application was successful, the tenancy could then be revived!

Of course, in practical terms, this is not the end of the matter but an unfortunate situation for Council Landlords and, nevertheless, remains a complex area of the law for tenants!

Communities Secretary Eric Pickles is not everyone’s flavour of the month in matters planning.  The removal of regional strategies and centrally imposed building targets has, for many involved in development and town and country planning, left a void which will result in fewer houses being built thereby exacerbating the current shortage.  However, not everything that Mr Pickles and his Department does is bad.  The Department of Communities and Local Government have produced technical guidance on permitted development for householders.  The intention behind the General Permitted Development Order is to enable small scale development to be undertaken without the necessity of obtaining planning permission thereby avoiding further clogging up the already overloaded planning system.

The document replaces earlier guidance.  The stated objective is to set out the rules concerning what extensions, improvements and alterations a householder may make to a house and the area around it without the need for a planning application.  The new guide is designed to be used by anyone who wants to understand more about the detailed rules on permitted development and the terms used in those rules.

Having read the guide and considered its diagrams, I have to agree that this document achieves its objectives.  In colloquial parlance, it does what it says on the tin.  As someone who has an expanding town and country planning practice, I confess that not only will householders find this document useful but at least one professional, namely myself.

Unfortunately at the time of writing this blog, the 26th August, the document does not appear on the website of the Department of Communities and Local Government nor on the website for national information.  If anyone wishes any information concerning this guidance, please contact me.

As of April 2011, the Competition Act 1998 will apply to property transactions.  The Act catches any agreement which may prevent, restrict or distort competition in the economic market or where one party endeavours to abuse a dominant position.  The introduction of this Act to property transactions will alter the way that we think.

There are four preliminary points, being:

1.    The Act is retrospective in that it catches not only new but past transactions.

2.    An offending provision will be incapable of enforcement and may render the whole agreement invalid.

3    A breach of the provisions of the Act can lead to fines, disqualifications of directors and claims for damages.

4.    The provisions will not be judged on their wording but against the effect on the market place.  This is a novel concept for us in the property business as it introduces an extraneous element over which there is little or no control.

What Will Be Caught?
The obvious area will be in respect of restrictive covenants but the effect of the Act is very wide and could, for example, catch easements which are restrictive in use.

How Much Will We All Be Affected?
The first reaction is that we will see a major shift in the way in which we consider all deals , in the commercial field and possibly even in some residential matters relating to property transactions, large or small.  A more considered reaction is that many transactions although restrictive may not fall within the ambit of the Act.

The Way Forward
1.    All existing Agreements, Transfers and Leases should be reviewed.
2.    All new transactions should be considered against the Act to see if they are likely to be caught by its provisions or whether they will be within the exemptions that the Act permits.

Conclusion
At present most people in the property field have not had to consider the Competition Act.  This has now changed but the effect on property transactions is still not clear.  We understand that the OFT will be issuing guidelines and we will bring these to your attention as issued.  These guidelines may be helpful in clarifying the situation.

In the meantime if you or your clients would like to discuss the effect of the Act on past, current or future transactions we will be happy to meet with you or them.

Contact us on 01635 521212 or through www.clmlaw.co.uk