The Practical Lawyer


Knotweed – nuisance

Last year, we had county court claims in Cardiff and Truro in which it was held that the encroachment of Japanese knotweed would be actionable as a ‘private nuisance’. The Cardiff cases have now gone to the CA, which has confirmed that there is a ‘nuisance’ – but for entirely different reasons.

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Property loans – enforcement

A reminder of the basic enforcement options for real estate lenders:

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Rates – empty property

If premises are unoccupied, then liability to pay the business rates falls on the ‘owner’ (ie the person entitled to possession).

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SDLT – ‘residential dwelling’

The distinction between ‘residential’ and ‘non-residential’ can be important, from an SDLT point of view, for builders.

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Restrictive covenants – s84

Section 84 LPA 1925 allows for the discharge or modification of restrictive covenants. There are several grounds but the one with the greatest chance of success is when the covenants do not secure any practical benefits of substantial value, or advantage, to those who can enforce them. While there are many cases about what this means, the reality is that each application turns on its own facts.

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Section 84 – compensation?

If a restrictive covenant is discharged and modified under s84, then the person with the benefit of the covenant will be entitled to compensation. But, how is that to be assessed?

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Negligent survey – damages?

If there is a negligent survey, then what damages can the home-buyer expect to recover? The simple answer is that the home-owner is unlikely to recover more than the difference between what was paid for the property and its value in that defective condition.

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Recitals – mandatory?

Not so long ago, any deed would have extensive recitals. Their purpose was to recite the history by which the parties had come to the point of agreement. Nowadays, however, recitals are usually very brief – and are sometimes dispensed with altogether.

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Registration gap – dangers

The potential dangers of the ‘registration gap’ are well-known. The ‘gap’ is the period of time between a buyer of a legal estate completing the transaction, and actually being registered as proprietor at the LR.

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Contract – no oral modification?

Most written contracts include a clause saying that any variation to the contract must be in writing and signed by the parties. This is often called a no oral modification clause.

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