On the horizon

Posted on 31 August 2021

What's coming up in the world of property litigation this autumn? Property Litigation Managing Associate Ros Monk considers the key developments and decisions expected. 

Residential

  • The extended notice period of four months for section 21 notices will expire at the end of September and the notice period will return to the "normal" two months, making it much quicker for landlords to deal with their properties.
  • We are expecting the Government to publish a White Paper in the Autumn on residential matters including the response to the consultation on the reform of residential tenancy law and the proposal to abolish section 21 notices and improve security for tenants.

Commercial property

  • We expect the Government to introduce the new Bill to deal with the rent arrears accrued through the course of the pandemic. The Government's press release suggested that a binding arbitration process would be put in place if the parties cannot reach agreement. Clearly, the details of this will be key and we await them with bated breath. In advance of this we expect landlords to pursue their rent arrears claims through the courts given the recent judgments in favour of landlords in Bank of New York Mellon v Cine-UK and in Commerz Real Investmentgesellschaft MBH v TFS Stores. We acted for the landlord Bank of New York Mellon and are currently waiting for the determination of the tenant's application for permission to appeal.
  • The Government has just published regulations which lift the restrictions in relation to statutory demands but which put further restrictions in place for the service of winding up petitions until 31 March 2022.  The restrictions on landlords being able to serve winding up petitions for commercial rent arrears caused by the financial effects of the pandemic will continue until 31 March 2022. The Regulations also include provisions to raise the minimum debt for a winding up petition and require creditors to ask the debtor for proposals for payment of the debt.
  • We are also expecting the Government to begin its review of commercial landlord and tenant legislation including the Landlord and Tenant Act of 1954.

Cladding & Construction

  • The Building Safety Bill which has been heralded as the most significant change to building safety regulation in decades is currently working its way through the Parliamentary system having been laid before Parliament on 5 July 2021. The proposed changes include extending the time period by which claims can be made under the Defective Premises Act 1972 to 15 years, creating a new Building Safety Regulator and creating new safety measures for certain tall buildings. Whilst it is unlikely to become law until spring 2022 at the earliest, and then will be followed by secondary legislation to implement the provisions of the Act, in anticipation of it becoming law we expect the sector to begin to prepare for some big changes to the industry.
  • The Government has confirmed that EWS1 forms should no longer be requested for buildings below 18m in height. The forms were introduced by the industry to provide assurance to lenders or purchasers on the safety of a building's external wall system in the wake of the Grenfell Tower tragedy. The Government's clarification is welcome, but it remains to be seen if lenders will change their commercial practice in actuality, since the statement was advisory only (and the EWS1 process has never been underpinned by statute anyway).

Key decisions expected

  • The Supreme Court should hear the appeal in the Tate Modern privacy case this autumn. Neighbouring residents continue to seek an injunction to stop the visitors to the Tate Modern from looking into their flats. The decision has potential ramifications for the law of nuisance and issues of privacy, particularly in busy city centre developments.
  • The Supreme Court is due to hear the appeal in Cornerstone Telecommunications Infrastructure v Compton Beauchamp Estates. Cornerstone, a telecommunications operator, is appealing the recent decision of the Court of Appeal, which confirmed the decision of the Upper Tribunal that it did not have jurisdiction under the Electronic Communications Code to impose an agreement on a landowner where another operator was already in occupation of the site in question. To date, both the Upper Tribunal and the Court of Appeal have applied a literal approach to interpreting the Code, which provides that only the "occupier" of land can grant Code rights. They asserted that it was "a question of fact rather than legal status" as to whether a party is an occupier. If the Supreme Court were to adopt a wider definition of "occupier", this could open the floodgates for operators to claim more expansive rights under the Code and is likely to further widen the rift between landowners and operators.
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