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Surveyor negligence – ‘but for’ damages

It seems a simple question – but it has taken the Supreme Court to come up with an answer (and that answer has been much criticised). The question is this: a lender makes Loan 1 to a borrower. Later, the lender makes Loan 2 to the same borrower – but about 75% of Loan 2 is to be used to pay off Loan 1. However, it turns out that the surveyor who did the valuation at the time of Loan 2 was negligent, and the property was worth less. Accordingly, the lender sues the negligent surveyor for the losses arising. Are those losses the full 100% of Loan 2, or just 25% (given that 75% was already owed on the property)?

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Public right of way – s31(6) deposit

There are several ways in which new public rights of way can be created: by express grant, by order of a public authority, or by ‘dedication’ by the landowner (which can be either express or implied). In practice, the most common of these is presumed dedication (ie implied dedication), which can be either at common law or by statute. In practice, statute is by far the most common, and the statutory test for presumed dedication is set out in s31(1) HA 1980:

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Restrictive covenant – reminders

A reminder of some of the basic points about restrictive covenants:

Does the covenant ‘touch and concern’ (ie benefit) the land? And does it ‘burden’ other land? Unless it touches and concerns land it will probably be a mere personal benefit, and thus merely a contractual arrangement (rather than a restrictive covenant).

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Restrictive covenant – illustration

A recent Upper Tribunal case provides a neat illustration of the way the Tribunal can approach compensation, conduct, consent, and costs.

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Adverse possession – registered land

A reminder that there are two different regimes for establishing adverse possession in respect of registered land.

Old law: if a trespasser can show that they had been in adverse possession for 12 years prior to 13 October 2003 then there will be an entitlement to be registered as proprietor.

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Squatters – Christmas

Anecdotally, there is an increase in the number of squatting cases over Christmas (whether they be illegal ravers, protesters, or trespassers who want to strip the premises and dump contaminated waste and rubbish in the premises). Needless to say, many commercial premises, such as offices, are particularly vulnerable during the long Christmas break.

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Right to light – release by T?

To what extent can a long-lessee release the right to light over the tenanted property (without L’s consent)? After all, if there is 20 years or more left on the lease then, in theory, that would allow a neighbour to acquire a right to light (without L’s consent).

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Restrictive covenant – pub

The ongoing closure of pubs is seen as a social ill. Typically, the pub owner will face two challenges. Firstly, an application for planning permission will now probably be necessary. Secondly, local residents may be able to protest (and delay) by having the pub registered as an ACV (asset of community value).

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Pool Re – terrorist ‘organisation’

Many businesses purchase additional terrorism cover. That terrorism cover is provided by insurers through the Pool Re scheme (the logic being that insurers pay a premium which is then charged to the customer, but the insurance industry in general benefits from group coverage of the risks of terrorism damage through Pool Re).

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Prescription – evidential burden

For a prescription, it is necessary to show (i) that the right has been exercised for 20 years or more, and (ii) that the use was without force, secrecy or permission.

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Trustees – duty to beneficiaries
Wednesday, 11 July 2018
Trustees cannot simply ignore beneficiaries’ request for information about a trust, the High Court has held. In this case, the trust property was a farm outside Cardiff. Read more...
Conveyancing searches – disbursements?
Wednesday, 11 July 2018
Should electronic property searches be treated as disbursements for VAT purposes? Alternatively, are they part of the legal service provided, and so subject to VAT? Read more...
Professional – update
Wednesday, 11 July 2018
From December 2018 there will be new rules requiring firms to publish prices for conveyancing, probate, motoring offences and immigration, as well as the price for bringing ET claims.  Read more...
Service mistake – discretion?
Wednesday, 11 July 2018
To what extent do you have a duty to point out the other side’s procedural errors (as part of your obligation to comply with the ‘overriding objective’)? Read more...
Exiting the Portal – reasonable
Wednesday, 11 July 2018
Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’. Read more...
Airbnb – breach of lease
Wednesday, 11 July 2018
It now seems clear that an Airbnb short let will be in breach of a typical long lease. Read more...
GDPR – data rooms
Wednesday, 11 July 2018
If L is planning to sell a property subject to leases, then almost certainly a data room will be set up containing all relevant documents. Read more...
Rights of way – public
Wednesday, 11 July 2018
There are four categories of public rights of way: Read more...
Financial remedies – company assets
Wednesday, 11 July 2018
A recent ruling illustrates when a court can treat a company-owned asset as as a matrimonial asset. Read more...
GDPR – references
Wednesday, 11 July 2018
GDPR impacts on the giving of references: Read more...

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