The Practical Lawyer


Special vehicle – English limited partnership

English limited partnerships (ELPs) are frequently used as property-holding structures. In essence, this is a partnership set up under the Limited Partnership Act 1907 with a general partner and one or more limited partners:

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Easement – extent of ‘protest’?

  If an easement is claimed by prescription then it will usually be necessary to show 20 years’ uninterrupted use ‘as of right’ (ie without force, without secrecy and without permission). But, what does the landowner have to do to sufficiently protest at the unauthorised use?

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Loan – high net worth

  A ‘regulated credit agreement’ is a loan made to an individual (or partnership) which is not secured on residential land. As such, it is a ‘regulated’ activity (and must be FCA authorised).

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Rentcharges – redemption

Rentcharges Act 1977 will extinguish all existing rentcharges in 2037. In the meantime, s8 sets out a statutory redemption procedure, and s10 has a formula for calculating the statutory redemption price. That refers to a type of gilt that is no longer available and so it has not been possible to apply that statutory formula, although that now changes as from 1 October 2016 with the formula being amended to remedy that defect. So, previous disputes about the application of the statutory formula for redemption are now removed.

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Local authorities – best price

Section 123 LGA 1972 requires an LA to get ministerial consent for a disposal of land ‘for a consideration less than the best that can reasonably be obtained’. A slightly different regime applies for planning purposes: s233 TCPA 1990 contains a similar restriction, but does have an exception so that land can be sold for less than ‘best price’ if it is for a specified planning purpose.

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Rates – multi-lets

What happens if a business occupies more than one floor of a multi-storey building? If the two floors are next to each other there will usually be no problem in getting those two floors rated as a single rating unit. But, what if the two floors are not contiguous (eg a single business occupies floor one and floor three)?
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ACV – unlawful use?

A property can be listed as an asset of community value even if the public’s use of it is unlawful.

This is the surprising conclusion of the Upper Tribunal in the case of a field owned by Banner Homes. The local residents’ association had applied for ACV listing on the basis that the field had been used for 40 years by local residents for recreational use (eg walking, exercising dogs, informal play by children, and photography of local flora and fauna). The ACV application was successful, which then resulted in Banner Homes erecting fences and signs stating ‘private land no unauthorised access’. The LA accepted that Banner Homes was entitled to exclude the public in this way, but it upheld the ACV listing on appeal.

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Negligent valuation – compound interest?

If a bank is entitled to damages for negligent valuation can it claim compound interest on those damages?

The logic for such a claim is that the bank has lost the opportunity to lend elsewhere the money that has been lent to this particular borrower. But, to succeed in such a claim the bank ‘will have to show that there was an unsatisfied demand for loans from persons meeting its lending criteria. This may be unlikely, particularly given the profligate rate of lending at the time which is relevant to most lender claims’.

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Foreign developers – tax

The tax position of non-resident developers and traders changed dramatically on 5 July 2016.

Profits from trading and developing UK land are now chargeable to UK tax even if the trader or developer is non-resident and does not have a ‘permanent establishment’ in the UK. Previously, the ‘permanent establishment’ requirement meant that many non-residents were able to avoid UK corporation tax.

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Right to light – injunction

An injunction has been upheld against a developer even though the right to light infringement was valued at £886 (and the cost of alternative building works was £6,000). The key point was the bad behaviour of the developer.

The traditional approach as to whether an injunction should be granted in a right to light case was set out in Shelfer [1891]. Importantly, if the injury to the neighbour was ‘minor’, then that could be compensated by a payment of damages, with an injunction being refused. However, that simplistic approach was rejected by the SC in Coventry [2014], with a more flexible approach being preferred. Thus, this latest case is a good illustration of how the new approach can result in the granting of an injunction where one would not previously have been granted.

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