The Practical Lawyer


‘Rebuild and renew’ – new development?

A 1993 easement granted a right of way for the ‘repair, rebuilding or renewal’ of a property. The property owner now wanted to demolish the existing single-storey warehouse (3,382 sq ft) and replace it with a new five- or six- storey residential and commercial block (22,000 sq ft).

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Oral agreement – proprietary estoppel

As we all know, s2 Law of Property (Miscellaneous Provisions) Act 1989 requires land contracts to be in writing. But, there is an exception for ‘resulting, implied or constructive trusts’. Note that there is no specific exception for estoppel.

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Architect – copyright

Under RIBA Standard Contract Conditions, an architect retains ownership of the copyright of the design in his drawings and plans, and therefore has control over their use.

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SDLT – abnormal rent increases

The SDLT regime was first introduced in December 2003, with the idea being that SDLT would normally be paid on the basis of the rents in the first five years. But, it is important to watch out for abnormal rent increases, since there are anti-avoidance provisions for those who might seek to lower the SDLT by having abnormally high rent increases outside the five-year period.

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SDLT – liability of assignee

One point to remember when acting for an assignee of an existing lease is that the client will take on all the liabilities of the assignor, including any adjustment of SDLT at the end of the five years, as well as any SDLT that may become payable on ‘abnormal’ increases of rent.

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SDLT – VAT changes

The change in the VAT rate announced in December can cause problems when calculating SDLT if VAT is charged on rent.

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Inheritance Tax – valuations

The fall in property prices is causing many IHT problems since IHT valuations are made at the date of death – which means that families may then find that they are being forced to pay tax on a value that can no longer be realised in the open market.

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LPA receiver – the basics

The property slump has seen the return of the LPA receiver (a property manager appointed by a lender under a fixed charge to take control of the mortgaged property following default by the borrower).

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Mortgage – power of sale

Prior to the introduction of Human Rights Act 1998, it was widely accepted that s101 enabled a mortgagee to exercise a power of sale, without first seeking a court order. But, has HRA 1998 changed that position?

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Nuisance – injunction or damages?

The starting point is to say that the normal remedy in respect of nuisance from land will be an injunction (not damages). Courts take the view that it is not for them to legalise wrongful acts, by merely allowing a money sum to be paid by a nuisance-causing wrongdoer.

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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...
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GDPR – references
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