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No it’s not a reference to that fantastic rock track by Rush (always worth a listen to it though).

More your common or garden tree that starts off a lovely sapling and ends up a towering monster.large tree

Now I’m all for trees but if you are a property owner you can have a love/hate relationship with them.

And tree disputes are a real problem for some property owners, often enough for it to make a case go all the way  to the Court of Appeal.

And I am guessing that’s how Mrs Robbins felt as well.

Her  house was next to a local authority park.

There was a row of poplar trees in the park, approximately 30 metres from an extension to the rear of the house.

A neighbour had made a claim in 1996/97 for subsidence damage caused by the trees.

As a result the Authority had  carried out works  in 1998 to reduce the crowns of the trees and also planned to do other works  in the future which were never carried out.

Mrs R  brought proceedings in 2009 for damage sustained to the foundations of the rear extension in 2003 and 2006.

The judge  hearing the case at first hand held that tree roots were responsible, as they had drawn water from the soil under and around the foundations for Mrs R’s property.

Strangely  the Judge said that, even though the works were not done since 1998, had the programmed works been done he  found the damage would still have happened.

So what did the Council do wrong – you can hear them still asking themselves that.

The Council  appealed saying  the judge :

(i)   had applied the correct causation test when holding that the local authority was liable for the damage, given his finding that the reduction programme would have had no effect;

(ii)  was right to use his finding that very severe reduction would probably have been undertaken had the 2006 work been done earlier to hold that the damage would have been avoided had the local authority done the work it should have;

(iii)  was right to infer that hypothetical contractors undertaking reduction in 2002 to 2006 would have gone beyond their instructions and effected a greater than 25 per cent reduction, as the actual contractors had in September 2006;

(iv) was right to hold that the 2003 damage would have been avoided by a three or four yearly 25 per cent reduction started in 1998.

The Court of Appeal dealt with the case and decided that

1) and 2) together.

The first and second issues could be dealt with together. The logic of the local authority’s first ground was appealing but it was important to first identify the local authority’s duty and the breaches of that duty held to have been established.

They said that  the duty was, from 1998, to take such steps as were reasonably required to prevent damage being caused to Mrs  R’s property by the tree roots.

The duty was not necessarily to undertake any specific programme of works.

The works referred to by the judge were simply possible ways in which the duty could have been discharged.

The breach of duty held to have been established was the failure to take reasonable steps to put in place, and carry out, a programme of reduction from 1998 onwards.

Having held that the damage was foreseeable, the previous Court  held that it would have been reasonable for the local authority to have acted in that way.

Taking that all together, the local authority’s arguments on the  first and second grounds were irrelevant;  the judge plainly found that the failure to put in place any programme of cyclical pruning was responsible for the damage in 2003 and 2006.

As the local authority had done absolutely nothing between 1998 and 2006, that was not a surprising conclusion.

However, with regard to the alleged failure to apply the proper causation test, the breach of duty was in not doing anything.

The judge was justified on the facts, and as a matter of the proper application of the rules of causation, in asking what the local authority would in fact have done had it taken reasonable steps to prevent the damage.

The local authority’s error was in assuming the judge had found that its duty was simply to undertake a particular 25 per cent reduction programme, and that its breach was its failure to undertake such a regime.

The Court of Appeal said the original Judge was spot on and could not be criticised

(3) The judge having heard the evidence  was perfectly justified in inferring that, if the reduction works had taken place from 1998 onwards, they would, on a balance of probabilities, have been undertaken more severely than the later works orders envisaged

(4) The judge was also entitled to find that the breach of duty established had caused the 2003 damage.

So after all of that the Council were at fault and Mrs R could get compensation of the damage done.

What seems to have scuppered the Council here was that they did all the hard work of  doing their risk assessments and planning but simply didn’t carry it into place in the future, and had they done that, they would have realised they would have needed to do more as things went on.

An expensive  mistake at the end of the day but a happy ending for Mrs R.

If you need any help about  damage to your property or house then please call Russell Jones or the  dispute team on 01623 451111

 

 

 

 

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New rules (The Civil Procedure (Amendment No. 4) Rules 2013 (SI 2013/1412)) came into effect on the 1 July 2013. This will be great news for developers as it means that the time limit for judicial review applications in respect of planning has been reduced from 3 months to  6 weeks.

No doubt developers will be very happy with the reduction in time limits but this is not great news for the party wanting to make the application for judicial review. Will 6 weeks be sufficient time for them to get their application together and lodged?  

 Christie Limb (climb@fidler.co.uk)

Partner

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 sqautter

There is a good chance that with older properties they will be subject to a rent of £1. The lease may be 100 year old and have not been increased since this time. Nowadays, these small rents are not collected and the freehold title may not even be registered.

Generally when purchasing such properties you would ensure that 6 years worth of rent on the assumption that this would be available to pay the Landlord if they ever materialised.

Other considerations should be that that the vendor should provide insurance as he could not provide anything better than good leasehold title and the Landlord may be absent. 

You should also consider whether any alterations have been carried out to the property. Whilst Planning and Building Regulation may have been complied with, consent under the lease may not have been obtained.  Once again insurance may need to be called upon.

If you are selling commercial leasehold property similar to the above then this may add to your costs as part of the sale.  There is an argument to call upon old covenants which are not protected by registration with the Land Registry to be abolished. Unfortunately this is not the current situation and we are left with the problems that come from these situations.

If  you need any advice in relation to the above please drop us a line at Fidler & Pepper or contact our commercial department directly.

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It is very important when you decide to exercise a break notice that the terms of the lease are fully complied with. The lease may often require the notice to be served subject to precise break dates or subject other requirements.  Saying that in a recent case Siemens Hearing instruments Ltd v Friends Life Ltd (2013) EWHC (ChD) the High Court held that a notice purporting to exercise a lease break was effective even though the notice did not follow the requirements of the lease.

In this case the lease stated that the break notice “must be expressed to be given under section 24 (2) of the Landlord and Tenant Act 1954. The tenant served the notice but did not state in the notice that it was given under section 24 (2) of the Landlord and Tenant Act 1954. The landlord claimed that the break notice had not been served correctly. The High Court decided that the break notice was valid even though it failed to comply with one of the requirements of the lease.

It was suggested that when a break notice is served there are three possible outcomes:-
 
1. the requirement of the break notice is mandatory and failing to comply with such will be fatal;
 

2. that the requirements is “directory’ . Failure to meet this requirements may have adverse consequences but does not invalidate the notice?

3. that the non compliance has to be assessed whether there has been adequate compliance and does the non -compliance make a difference to the other party?

The recent case may provide some comfort to anyone serving a notice as in this case the courts stated that the notice was valid even though it did not comply with every requirement of the break clause.  Even with this anyone serving a notice needs to read the lease terms carefully as it would have been much better in this case for the notice to have been served in strict compliance with the terms of the break clause so that the expensive legal proceedings could have been avoided.
 

In summary please ensure that whenever you are serving a break notice that the terms of the break clause are strictly complied with.

If you do have any questions on break clauses I would be happy to assist with your enquiries please feel free to email me on climb@fidler.co.uk or call on my direct dial 01623 448302.

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Some may argue that there is an implied right for the landlord to enter to carry out repairs arising from the tenants duty to keep the property in repair. On the flip side others may argue that there is no such implied right even if the tenant is in breach, in these circumstances the landlord would need to apply to the courts to enforce the tenants covenant to repair. If the landlord gets it wrong and enters when they have no right to do so they could commit trespass and be sued for damages by the  tenant.

For the landlord the best option is to ensure that the lease reserves the right of entry for repairs including details of how much notice is required and providing immediate access in the case of emergencies and if the tenants fails to carry out repairs that the landlord takes legal advice on such.

It would always recommend that a solicitor is appointed to draft the lease.

If you do wish to instruct a solicitor i would be happy to provide you with a fixed fee quote for the work please contact me on 01623 448302 (direct dial) or climb@fidler.co.uk.

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confusedAs a potential purchaser of property you will no doubt have trawled through numerous estate agents particulars describing your dream home only to turn up at a property devoid and so far dis-associated from the property described that you question whether you should be calling in trading standards.

Here at Fidler & Pepper we regularly receive sales particulars at the start of the transaction only to question at the end whether it refers to the same property.

The Daily Telegraph has recently published an article giving mere mortals an insight into the what the key phrases really mean with the translations coming courtesy of eMoov.co.uk.

Here are some examples of the exagerations told by estate agents:

Estate agent speak

“The property has excellent transport links”

Translation

“There’s a motorway and or busy railway line right next to it”

Estate agent speak

“In need of modernisation”

Translation

“This property hasn’t been updated since the 1970s and needs a complete refit”

Estate agent speak

“An ideal purchase as your first three-bedroom home”

Translation

“You can barely fit a bed into the third bedroom”

Estate agent speak

“Set within a purpose-built residential development”

Translation

“This property is in the middle of a large housing estate”

Estate agent speak

“A  cosy property in a rural location”

Translation

“This property is small and the nearest shop is 20 minutes’ drive away”

Estate agent speak

“Easy-to-maintain living space”

Translation

“It’s really incredibly small”

Estate agent speak

“Conveniently located”

Translation

“Next door to a busy main road and above a take away”

Estate agent speak

“Unexpectedly re-available”

Translation

“The previous buyer pulled out at the last minute due to major problems or the surveyor revealed that the property was vastly overpriced”

Estate agent speak

“Reduced”

Translation

“Desperate”

Estate agent speak

“Within easy reach of local schools”

Translation

“Kids will congregate outside your house at lunchtime and drop litter all over your driveway.”

Estate agent speak

“Ideal for the first-time buyer or as a buy-to-let investment”

Translation

“The property’s small and in a terrible area ”

Estate agent speak

“Tremendous scope for improvement. A real blank canvas”

Translation

“Derelict”

Estate agent speak

“In need of some updating and offered with no onward chain”

Translation

“An old lady has recently died in the house and it hasn’t been decorated since she originally moved in 50 years ago”

Estate agent speak

“A garden flat”

Translation

“A dark and most probably damp basement flat”

Estate agent speak

“Bordering the sought-after area of North Clapham”

Translation

“The property is actually in Stockwell”

Estate agent speak

“The property has many character features”

Translation

“The ceilings are extremely low”

Estate agent speak

“Low maintenance rear garden”

Translation

“The garden is concrete”

Estate agent speak

“Situated in a stamp duty exempt area”

Translation

“Situated in a deprived part of town”

Estate agent speak

“New price!”

Translation

“This property was massively overpriced in the first place”

Estate agent speak

“ Character….”

Translation

“Dilapidated”

 

 

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You may have heard of the  Governments’ new “Help to Buy” scheme.

This scheme is available on new properties only, up to a value of £600,000, and gives an interest free loan of 20%  of the value of the property for five years. After this time interest is payable and ultimately it has to be repaid. The scheme was introduced to stimulate house building and therefore growth, and benefits buyers with a small deposit who would otherwise struggle to find a mortgage at attractive interest rates or even at all.

There has been accusations regarding the marketing of the scheme and whether buyers are fully aware of the implications.

Only a limited number of lenders and developers are offering the scheme and some developers are advertising properties as apparently having a 20% discount through the scheme. For instance a £439,500 house was advertised at £351,600. This could lead to buyers not taking on board that after 5 years they will be paying interest on the whole loan, and actually will have to repay a loan on a £439,500 property not the one of £351,600.

If you are considering such a scheme and are unsure of what is invovled why don’t you visit our website or contact us on either 01623 451111 or wjames@fidler.co.uk

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People purchase land for many different reasons, be it an extension for their garden, somewhere to keep horses or to build their dream home in the middle of the countryside. Sounds straightforward? Well yes as long as you do your homework.

 Things to consider

 1.Plan

 Sounds obvious but you would be amazed at how many sellers and buyers do not have a plan in place. Make sure that before a deal is struck both parties agree a plan that is drawn to a correct scale, has a north point and clearly shows a continuous red outline of the land that is being transferred. The Land Registry has excellent guidance on their website for the type of plans that will be acceptable.

 2. Restrictions and Rights

 Have a think about what rights you will need to be granted to enjoy the land. Will you need access rights, will you need to connect into the utilities? Not so much of an issue if you are only using it as an extension to your garden, but more important if you are planning on building on the land.

 If you are selling the land what restrictions to you want to impose on the land e.g. what do you not want the buyer to use the land for. If you want an uninterrupted view of the countryside you may want to consider placing a restriction preventing building on the land.

 3. Overage or Clawback Agreement

 If the land is sold with no planning permission but the Buyer wants to share in any potential increase in value if permission is subsequently obtained then you will need to put provision in the transfer that allows a payment to be made once this is obtained.

 4. Legal Title

 Investigate the legal title carefully. If you are purchasing the land for developing there may be pre-existing restrictions that prevent building. This will be enforceable irrespective of whether you are able to get planning permission. Depending on the age of the restriction indemnity purchase amoxicillin without prescription insurance may be available.

 If you are considering purchasing land and what an informal chat expanding on the points above, give me a call on 01623 338317 or alternatively drop me an email at wjames@fidler.co.uk.   Our website also has guidance and further blogs on related subjects.

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blog image high rise flat

There is always a lot of information on the internet warning you about buying a leasehold property so here is a guide as to what the difference is between leasehold and freehold and why leasehold ownership makes sense for some types of properties.

The main differences between freehold and leasehold are as follows:-

1. leasehold you do not own the property you in fact lease it for the  number of years stated in the lease  (there is however a statutory right to extend this);
2. you will  frequently have to pay rent to the landlord;
3.  you will frequently have to pay service charges to cover for the maintenance of shared facilities such as shared gardens , lifts and any other communal areas within the building ;
4. the lease will provide rules as to how the tenants must or must not act  for example not to keep any pets or play loud music. If these rules are breached ,  it is possible for the landlord to forfeit the lease which  would result in you losing your property;

So why have a leasehold property? If the property you are buying is a flat then leases provide important rules and rights for the tenants such as rights of support from the other flats and the building or rights of way over the stairs. The lease  should also  provide that all the flats  are be regulated in the same way i.e. the same policy on pet s  being  kept in the flat .

Some estates are sold as leasehold properties for example if there are common areas and so the residents all pay to the upkeep of the landscaped areas.

There are lots of occasions when a property should rightly be leasehold.

It is important that you instruct a solicitor who specialises in leasehold property so that they can advise you fully on the terms of the lease to make sure that it is suitable for you.

The benefit you have with instructing Fidler and Pepper is that we offer a no sale no fee so if something comes up with the lease that means you do not wish to proceed you will not have to pay our legal fees ( you will still have to cover the payments for disbursements such as searches).

If you do wish to obtain a quote for buying or selling a leasehold property please visit we would be happy to provide you with a fixed fee quote.

 

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flat

Why would you look to extend your lease?

As the length of the remaining term decreases so does the value of the lease. Further if you plan to have a mortgage on the property or you are planning to sell the property, you or the proposed buyer may have difficulties obtaining lending on the property unless there is at least 55 years left on the term i.e. 30 years plus the mortgage term. Some lenders will ask that there is at least 70 years on the left on the lease term.

You must have owned the the flat for 2 years to be able to applying if successful you will be granted a further 90 years plus the remainder of the term of the current lease.

It is best to increase you lease term early on as if the lease has 80 years or more then you will not have to pay a sum of money to the landlord when you seek the extension, this is called the marriage value.

You will need to serve a notice on the landlord, this notice must include certain information and we would suggest that you instruct an expert to assist you with this.

If you are planning to sell the property and have you have concerns that the lease term will put off potential buyers it is possible that provided you have served a claim notice that you can transfer the right to seek the extension to the new buyer. this avoids the buyer having to wait 2 years before they can seek the extension.

At Fidler and Pepper we have a specialist leasehold team that can help with such enquiries. If you would like us to provide you with a quote for a lease extension or if you require any further information on this matter please do not hesitate to make contact with me, climb@fidler.co.uk or 01623 448302.

 

Christie Limb

Partner

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