Nearly Legal

OK, so they are late. In fact so late that the Times has started to catch up. Finally, some brief comments on the three cases from last week.

Majorstake Limited (Respondents) v Curtis (Appellant) [2008] UKHL 10. What constitutes a premises for the purposes of section 47(2)(b)(ii) of the Leasehold Reform, Housing and Urban Development Act 1993? (the section dealing with landlord’s proposed developments to the premises)

The key phrase is “the whole or a substantial part of any premises in which the flat is contained”. Can the landlord just identify ‘the premises’ themselves, by ‘drawing their own line’ on a plan that includes the tenant’s flat and include it in their counter-notice?

Simple answer – No. The key word is ‘is’ – what can be seen on the ground at the time the tenant serves his/her notice. One must examine the state of the building within which the flat is situated. Otherwise, the landlord is able to establish the development works affect a ’substantial part’ of the premises by designating the premises as whatever takes their fancy, thus defeating the tenant’s right to acquire a new lease, if the lease has less than 5 years to run. Premises, in its common usage must refer to a self contained unit in which the flat is contained. Opinions differed on the meaning of ’substantial’, but the majority accepted that it referred to the proportion of the premises affected.

The case also marks the debut of Harry Potter citations in the House of Lords. From Lord Scott of Foscote’s judgment:

Harry Potter, we are told, received letters addressed to him at “The Cupboard under the Stairs, 4 Privet Drive, Little Winging”. “The Cupboard under the Stairs” might have constituted “premises” for the purpose of letters from Hogwarts but for the purposes of construction of the 1993 Act a normal use of the English language must be assumed. I do not accept that it could possibly have been the Parliamentary intention that the “premises in which [Flat 77] is contained” could consist of Flat 77 and a contiguous flat, whether contiguous vertically or horizontally.

This is not a development to be encouraged.

Boss Holdings Ltd v Grosvenor West End Properties and Another  [2008] UKHL 5  on when is a house a house within the meaning of section 2 (1) of the Leasehold Reform Act 1967?

S.2 (1) reads, rather marvellously:

“…’house’ includes any building designed or adapted for living in and reasonably so called, notwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes: and-

a) where a building is divided horizontally, the flats or other units into which it is so divided are not separate ‘houses’ although the building as a whole may be: and

b) where a building is divided vertically the building as a whole is not a ‘house’ though any of the units into which it is divided may be.”

Does the physical state of a property prevent it being ‘designed or adapted for living in’? Not if it was originally so designed or adapted – design is an historic point, not a current state. S.2(1) should be considered in view of the requirement of the unamended 1967 Act that the leaseholder should be resident, thus making an additional requirement that the property be habitable superfluous, despite the removal of the residence requirement in subsequent amendments.

Whether a subsequent adaptation to a non-residential use stops the property being a house is not decided, but it is suggested, obiter, that because ‘designed’ or ‘adapted’ are alternative qualifying requirements, once a property is a house, so it remains…

 Greenwood Reversions Ltd. v World Environment Foundation Ltd. – and – Madhav Mehra [2008] EWCA Civ 47 on waiver and forfeiture of lease.

Very much on its own (quite extraordinary) facts. But:

Without deciding the point, it is assumed that an unqualified demand for future rent will operate a waiver and the strict rule applicable to receipt of rent is applicable. The general rule of an unequivocal act by the landlord that can only be consistent with the lease continuing is supported.

Forfeiture – exercise of the judicial discretion to refuse relief  from forfeiture or to give alternative remedy (e.g. order for sale) will not be interfered wth by the Court of Apeal unless it is a decision no reasonable judge could reach. It is worth remembering it is a wide discretion, but that cuts both ways.