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On the horizon

Posted on 20 April 2023

What's coming up in the property world? Ros Monk, Alex Barker, Isabel Emerson-Lich, Laura Odlind and Robert Mackay in our Property Litigation Group consider some of the key reforms and landmark cases expected across the commercial and residential property spheres this year.


On 18 January 2023 the Supreme Court handed down its decision in the appeal of Sara & Hossein v Blacks Outdoor Retail. The appeal, which was heard in November 2022, relates to the conclusiveness of a landlord's certificate of the total cost of services provided under the lease, and the service charge payable by the tenant. We explain more in our article.

On 28 March 2023 the Law Commission announced that it will be reviewing part of the Landlord and Tenant Act 1954. The Act provides certain business tenants with a right to renew their lease subject to the landlord being able to oppose that renewal on certain grounds. This review has been suggested many times and apparently comes because the Law Commission has received feedback that the Act is inflexible, bureaucratic and out of date, causing extra cost and delay for both landlords and tenants, and is preventing space in high streets and other commercial centres from being occupied quickly and efficiently.

In the review, the Law Commission will consider the existing legislation in the context of:

  • Creating a legal framework that is widely used rather than opted out of, without limiting the rights of parties to reach their own agreements;
  • Supporting the efficient use of space in high streets and town centres; and
  • Fostering a productive and beneficial commercial leasing relationship between landlords and tenants.

The Law Commission aims to publish a consultation paper by December 2023. We will keep you updated.

On 31 March 2023 the Government launched a consultation on the proposals for High Street Rental Auctions in England. The proposals will give local authorities the right to auction commercial high street properties that have been vacant for longer than 12 months in a 24-month period: High street rental auctions - GOV.UK (www.gov.uk).

The consultation is open for 12 weeks.

On 1 April 2023 the next phase of the Minimum Energy Efficiency Standard (MEES) regulations came into force. As Ros and Gavin explain in their article, this means it is now unlawful for a landlord to continue to let a commercial property with an EPC rating of F or G, even if the lease was granted many years ago. In our second article by Ros, we explain the wider ways in which MEES could cause issues for both landlords and tenants.


On 1 February 2023 the Supreme Court handed down the long-awaited judgment in Fearn and others v Board of Trustees of the Tate Gallery. The case was brought by residents of Neo Bankside (a development of luxury apartments situated adjacent to the Blavatnik building at the Tate Modern). The residents claimed the Tate had caused a nuisance by allowing members of the public to overlook their apartments. The Supreme Court found that overlooking can constitute a nuisance, although it would not be a nuisance where such overlooking stems from the common and ordinary use of land. In this case the Tate's viewing gallery was not an ordinary use of land and therefore the Tate had caused the residents a nuisance. The decision marks a seminal turning point in the law of nuisance and we explain more in our article: see article here.

The Supreme Court also handed down judgment in Aviva Investors Ground Rent GP Ltd v Williams and others. The Supreme Court followed the Court of Appeal's decision to reject the leaseholder's application, providing much needed clarity on a landlord's ability to re-apportion service charges, despite fixed percentages being specified in the leases. The purpose of s.27A (6) of the Landlord and Tenant Act 1985 was as an anti-avoidance provision, designed to preserve the jurisdiction of the First-tier Tribunal. The purpose of the Act was not to dictate how the landlord is entitled to manage its service charge regime.

The Government recently announced a registration scheme as part of its plan to crack down on anti-social behaviour. The scheme will affect landlords renting their properties on 'Airbnb style' short-term lettings and would enable local authorities to take action against guests and owners that permit anti-social behaviour. It's not clear yet whether registration would be compulsory for landlords.

We understand that the Government does still intend to introduce the draft Renters Reform Bill, during this Parliamentary session, and by September 2023 at the latest. The bill is understood to include the abolition of section 21 'no fault' eviction notices, the creation of a landlord's register, and the creation of a private rented ombudsman with powers to scrutinise landlords. The Levelling Up, Housing and Communities Committee recently published their report on the proposed bill, and reiterated the need to abolish 'no-fault' evictions. The Committee did however recognise that the abolition of no-fault evictions would cause significant issues for landlords, as they would no longer be able to rely on the accelerated possession procedure to recover possession. The Committee went on to criticise the proposal to repeal section 21 notices without providing landlords confidence in their ability to regain possession under the alternative section 8 notice procedure. The Committee recommended the introduction of a specialist housing court, which would centralise all possession claims, rather than being dealt with by local county courts. The Committee's report was published in February and the Government has two months to respond.

The Government's 'fundamental' leasehold reform will be announced in the forthcoming King's speech, which is expected in the autumn.


28 April 2023 will mark the one-year anniversary of the Building Safety Act 2022 receiving Royal Assent. Whilst a number of aspects of the BSA have come into force already (notably revised limitation periods under the Defective Premises Act 1972 and the introduction of building liability orders), the majority of the new safety regime is yet to be rolled out by secondary legislation.

Various consultations on aspects of the Act are ongoing. A consultation has recently concluded on service charge transparency requirements (regarding how the costs of the new building safety regime are to be borne). Another has concluded on proposed legislation that would create a duty for landlords to take reasonable steps to explore all alternative cost recovery avenues before passing remediation costs on to leaseholders. Both consultations closed on 31 March 2023.

Meanwhile, 39 major developers have signed up to the Government's developer remediation contract by the 13 March 2023 deadline. Under the contract, developers commit to the repair of their unsafe developments at their own cost and to repay any funding received from the Government remediation programme fund. Several developers failed to sign up, for various reasons, risking exclusion from the English housebuilding market. The Government has promised to establish a Responsible Actors Scheme and has published guidance on how this will operate.


The Product Security and Telecommunications Infrastructure Act 2022 (Commencement No 1) Regulations 2023 came into force on 2 February 2023 and implemented parts of The Product Security and Telecommunications Infrastructure Act. Sections 57 (sharing rights), 60 (power to fly lines) and 75 (meaning of Electronic Communications) came into force on 7 February, whilst Sections 58 (upgrading and sharing - subsisting agreements) and 59 (upgrading and sharing – equipment installed before 29 December 2003) only came into force on 17 April 2023.

We are still awaiting confirmation of when the appeal of Vodafone Ltd v Gencomp (No 7) Ltd & AP Wireless II UK Ltd will be heard. This case has drawn attention to a gap in the drafting of the Code and concerns the procedure for renewal of agreements under the Electronic Communications Code in the context of a concurrent lease. It is of particular interest to tenants granted concurrent leases for development purposes.

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