The Practical Lawyer


Receiver – fixed charge

If a lender wants to enforce a mortgage over land then a fixed-charge receivership will often be the simplest way to proceed.

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Receiver – Human Rights?

If a mortgagee’s receiver sells a property then is that sale subject to Human Rights Act restrictions? Typically, this issue will arise if it is a residential property and the defaulting borrower argues that there would be a breach of Article 1 (‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should be deprived of his possessions...’).

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Trespass – High Court?

Normally, summary proceedings for trespass or squatting are brought in the County Court. But, it is often not appreciated that it may be possible to proceed in the High Court. The Part 55 PD says:

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Charging order – limitation period?

The Limitation Act 1980 sets out a 12-year period for an ‘action’ to recover ‘any principal sum of money secured by a mortgage or other charge on property’. Moreover, no action can be brought upon ‘any judgment after the expiration of six years from the date on which the judgment became enforceable’.

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Mortgage – repossession protocol

A new pre-action protocol for mortgage possession cases came into effect on 19 November.

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Business rates – empty properties

Under the new regime, there is only a three-month empty rate ‘holiday’ for vacant commercial premises (office and retail), with a six-month holiday for vacant industrial premises. After that, full rates are payable. The pre-budget statement exempted properties with a rateable value of less than £15,000 (for the year 2009-10), but for more valuable buildings it remains a problem.

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Shopping centres – trade mark

It is becoming increasingly common for real estate developers to get trade mark protection for the names and logos used in their retail shopping centres. Recently, the Trade Marks Registry refused such protection in respect of shopping centres but fortunately that decision was overturned on appeal.

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Mortgages – increasing margins?

When a fixed-rate mortgage ends, the interest rate will usually default to the lender’s standard variable rate. As has become well known in recent months, many mortgage lenders have taken advantage of this so as to increase their margins beyond what many would regard as reasonable. Is there anything that a borrower can do in such a situation?

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‘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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