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On the horizon

Posted on 12 December 2022

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What's coming up in the property world in 2023? Ros Monk, a managing associate in the Property Litigation Group, considers key reforms and landmark cases expected across the commercial and residential property spheres.

Residential

In Lambeth LBC v Kelly and others [2022] UKUT 290 (LC), the Upper Tribunal (Lands Chamber) held that the First-Tier Tribunal had been wrong to state that it had no jurisdiction to grant a landlord dispensation from the consultation requirements under section 20ZA of the Landlord and Tenant Act 1985 where it had already determined the service charge payable by one of the affected leaseholders.

The Supreme Court's judgment in the case of Fearn and others v Board of Trustees of the Tate Gallery is still awaited and we will report on this as soon as the decision is handed down.

There have been no new policy announcements from the Government in relation to either the proposed leasehold reform or private rented sector. We understand that the Government does still intend to implement the proposed reforms to the private rented sector during 2023.

Commercial

From 1 April 2023, the next phase of the Minimum Energy Efficiency Standard (MEES) regulations will come into force. This means it will be 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. Read our client guide for further information here.

The High Court recently handed down its judgment in Hush Brasseries Ltd v RLUKREF Nominees (UK) One Ltd and another [2022] EWHC 3018. Mishcon de Reya LLP acted on behalf of the tenant in this case and managed to secure relief from forfeiture granted in respect of an option agreement: see article here.

In the new year we are expecting the Supreme Court's 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.

Telecoms

A new Part 4A in the Electronic Communications Code is due to come into force on 26 December 2022. This will place an obligation on a landlord to facilitate the deployment of digital infrastructure upon receipt of a request from a tenant. If a landlord fails to respond, providers have the power to gain entry to the premises pursuant to interim rights under the Electronic Communications Code via the Upper Tribunal (Lands Chamber).

The Product Security and Telecommunications Infrastructure Act received Royal Assent on 6 December 2022. The changes introduced by the Act will include the amendment of the rights to share equipment and will also bring the valuation method for Landlord and Tenant Act 1954 renewals of Code sites in line with the Code valuation method. We will keep you updated on the implementation of the new Act.

The recent decision in Vodafone Ltd v Gencomp (No 7) Ltd & AP Wireless II UK Ltd is being appealed.

This case concerns the procedure for renewal of agreements under the Electronic Communications Code in the context of a concurrent lease. We will keep posted on the progress of the appeal.

Construction

A consultation has just opened on the operation of the Building Safety Levy (to close in February 2023). The Levy is part of the architecture of the Building Safety Act 2022. It is to be paid by developers on new residential buildings that need building control approval, and the money is to be used to fund remediation of fire safety/cladding issues.

We are still waiting for details of the building control regime that will be introduced by the Building Safety Act, however, the Government has indicated that this will come into force in 2023. We will keep you updated on this.

Overseas Entities

The Register of Overseas Entities launched on 1 August 2022. All overseas entities who already own or lease property must register with Companies House by 31 January 2023 and confirm who their beneficial owners are. It is a criminal offence not to have done so.

From 5 September 2022, any overseas entity must be registered into order to buy and sell property.

The details of the overseas entity and its beneficial owners will be available to the public on the online register. Further information can be found here.

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