All I want for Christmas is… Legal Notes

The Legal Notes team of Louise Clark, Elizabeth Dwomoh and Stuart Pemble don’t want a lot – just for you to enjoy their annual round-up of the year’s major cases, this year channelling a festive staple. It was Christmas Eve, and the Ditchim, Quick & Hyde Christmas party was in full swing. The karaoke, in particular, was beginning to get quite serious. The compliance officer for finance and administration had just completed his annual rendition of White Christmas to resounding applause (it really was very good). But that was just the icebreaker. The worst-kept secret in the firm all year was that the trainees had been practising Mariah Carey’s All I Want for Christmas since the summer and it was with some degree of pride that Will Ditchim, Sue Quicke and Ronan Hyde observed a quite brilliant performance. Collectively, the firm’s trainees had the same seven-octave vocal range as Mariah. They were pretty sure that their main local rivals, Bodgett, Scarper and Run across town, didn’t have nearly as talented a bunch of young lawyers. As things began to quieten down, and the last of the mince pies were handed around the team, the partners started reflecting on the legal year. The courts and tribunals of England and Wales had handed down some important decisions on issues across the property spectrum. A lot to unwrap In a packed field, Will Ditchim considered the commercial winners and losers. Richard and Sarah Ridley certainly fell into the latter camp in Brown v Ridley and another [2024] UKUT 14 (LC); [2024] PLSCS 19. Their claim to adverse possession of a strip of land on the boundary of the property of their neighbour, Alistdair Brown, failed because when they sought planning permission to develop the land two years prior to making their application for registration by adverse possession, they had to have known the land was not theirs. The Upper Tribunal (Lands Chamber) certainly didn’t make their wish come true when deciding that Court of Appeal authority in Zarb v Parry [2011] EWCA Civ 1306; [2012] 1 EGLR 1 meant that the 10-year period of reasonable belief that they owned the land had to end on the date of the application for registration under paragraph 5(4) of Schedule 6 of the Land Registration Act 2002. However, the Claphams and the Wrights were given the “just one thing” they needed in Clapham and others v Narga [2024] EWCA Civ 1388; [2024] PLSCS 197, when the Court of Appeal decided that the effect of 12 years’ adverse possession of unregistered land is to redraw the boundary between adjoining properties to reflect the position on the ground, irrespective of the title plan. They succeeded in retaining, for their very own, land which had been cultivated and used as part of their gardens since the 1980s. The Manchester Ship Canal Company and other potential claimants in a similar position would also be celebrating “more than you could ever know” as a result of the Supreme Court’s decision in Manchester Ship Canal Co Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22; [2024] EGLR 31 – one of a number of cases over the year which have extended and clarified the law of nuisance. The potentially ground-breaking decision confirmed that the discharge of polluting effluent into privately-owned watercourses is capable of being an actionable nuisance at common law and that, while the Water Industry Act 1991 excludes challenges to undertaker’s statutory duties, it preserves common law rights in nuisance or trespass. By contrast, Marc Davies probably wouldn’t “care about the presents under the Christmas tree” following his judicial experience in Davies v Bridgend County Borough Council [2024] UKSC 15; [2024] EGLR 28. His claim for damages for the diminution in the value of his land due to the spread of Japanese knotweed from adjoining council land succeeded in the County Court, High Court and Court of Appeal, only to fall at the final hurdle. The Supreme Court, by going back to basics, certainly didn’t make his “wish come true”. The diminution in value Davies complained of had occurred before the council became aware of the problem and should have implemented an effective treatment programme. So, the “but for” test was not satisfied, there was no causal link and the council was not liable. Adam Nicholson and Gavin Stafford would be hearing “sleigh bells ringing” having prevented the acquisition of a prescriptive right of way through their garden in Nicholson and another v Hale and another [2024] UKUT 153 (LC); [2024] PLSCS 112. The tribunal confirmed that a prescriptive easement is acquired by user as of right, without force, secrecy or consent and that a single sign can be sufficient to render use contentious provided that it clearly conveys that the owner objects and contests such use. Mohammed Sagier also wouldn’t be waiting for Santa to “make him happy with a toy on Christmas Day”, having received his own gift of a prescriptive right of way in Sagier V Kaur [2024] UKUT 217 (LC); [2024] PLSCS 141. The case decided that an interruption of rights accruing under the Prescription Act 1832 requires submission to or acquiescence in an obstruction, for a year, and that signs must be examined in their context and as to what they convey to the user. A very resi Christmas Following a year of considerable change in the residential property field, Sue Quicke reviewed the triumphs and failures. RTM companies had no “need to hang their stockings upon the fireplace” as the Supreme Court had delivered an early present in its decision in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27; [2024] EGLR 36. The failure to give a relevant notice to an intermediate landlord under section 79(6) of the Commonhold and Leasehold Reform Act 2002 only rendered the acquisition of the right to manage voidable, not void. An intermediate landlord with a valid objection could have the same heard on an appeal to the High Court. Joseph Donovan would also be celebrating early. He didn’t need “to make a list and send it to the North Pole for Saint Nick”. In Donovan v Prescott Place Freeholders and others [2024] EWCA Civ 298; [2024] EGLR 22, he sought, among other things, a declaration that his equitable leases were granted prior to the making of an order under section 19 of the Landlord and Tenant Act 1987 compelling the landlord to transfer its reversionary interest to the qualifying tenants’ nominee purchaser. The High Court decided that they were issued after the section 19 orders were made. Luckily for Donovan, the Court of Appeal set aside the injunctions against him and ruled that, when made, section 19 orders did not create an immediate interest in land. Leaseholders wouldn’t be “staying awake to hear those magic reindeer click” following the Court of Appeal’s decision in Assethold Ltd v Eveline Road RTM Co Ltd [2024] EWCA Civ 187. The court had been asked to decide a novel point – whether an RTM Company was required to serve a claim notice in respect of the smallest qualifying part of a self-contained building, subdivided into smaller parts, which satisfied the definition of “premises” under section of the Commonhold and Leasehold Reform Act 2002. The Court of Appeal, delivering a better gift than one from Santa, said no. If a building satisfied the test under section 72, which was a purely physical test, an RTM company could make a claim in respect of a self-contained part of a building which itself contained a self-contained part or self-contained parts of the same building. Purchasers were also given what they really needed by the Upper Tribunal (Lands Chamber) in RM Residential Ltd v Westacre Estates Ltd v another [2024] UKUT 56 (LC) [2024] PLSCS 45. The tribunal decided that, during the registration gap, a purchaser of a block of flats whose freehold title had yet to be registered did have the right to enter the land to carry out works and apply for dispensation in respect of those works. Construction cheer? And, in a year of significant decisions affecting the construction industry, Ronan Hyde mulled over the stars and also-rans. One highlight from late in the previous year that had an impact on 2024 was the decision in Van Elle Ltd v Keynvor Morlift Ltd [2023] EWHC 3137 (TCC); [2023] PLSCS 206, where the judge decided that for the purposes of construction adjudication, England ends at the mouth of a river. So VEL hit the Christmas jackpot as the adjudication decision it was seeking to enforce, which related to a pontoon upriver, was valid. Hyde had also followed the Supreme Court’s consideration of whether collateral warranties were construction contracts for the purposes of the Housing Grants, Construction and Regeneration Act 1996. The ability to claim on collateral warranties was an important protection for property investors who would “keep on waiting under the mistletoe” following the decision in Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP [2024] UKSC 23; [2024] PLSCS 127. The UK’s highest court had decided that warranties were most unlikely ever to be construction contracts. It was scant consolation that commentators (including here at EG) felt the decision was correct as a matter of law. Another important case of wider application than simply to the construction industry is the Technology and Construction Court’s determination in McLaughlin & Harvey Ltd v LJJ Ltd [2024] EWHC 1032 (TCC), on the extent that an adjudicator can correct a decision using the slip rule. The key point was that the adjudicator had corrected more than the clerical or typographical errors which the rule envisages by allowing detailed additional submissions from one of the parties. So, as “the sound of children’s laughter fills the air” it was the original decision, and not the corrected one, which was enforceable. More recently, the Court of Appeal’s decision in Providence Building Services Ltd v Hexagon Housing Association Ltd [2024] EWCA Civ 962; [2024] PLSCS 150, making it easier for contractors using the JCT design and build form to terminate the contract for non-payment, has taken some of the sheen off all of the lights “shining so brightly everywhere”. Hyde agreed with those commentators who suggested that the clause in question (8.9.4) should probably be deleted. As the partners raised their glasses to a busy and varied 2024, they were agreed that there was just one thing they needed – an equally eventful 2025, with property law remaining at the cutting edge of judicial activity. Season’s greetings to all our readers. Louise Clark is a property law consultant, Elizabeth Dwomoh is a barrister at Lamb Chambers and Stuart Pemble is a partner at Mills & Reeve Photo by Gregory Pace/Shutterstock (7567025cw)