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Popular legal Latin (part two) 20 April 2014

What could be better for a Weekend Musings article than a four-day weekend over Easter?  Ideal, perhaps, for musing how popular the previous article on legal Latin proved to be, as I had anticipated (see my article “Latin lives on in the law” published on 12 April 2014). 

Here are some of the suggestions I have received from you, the readers of this blog, for more much-loved Latin phrases that continue to be used by lawyers, and in particular by property lawyers.

In no particular order:

ab initio – from the beginning, or from the start.  Particularly popular in the phrase “Void ab initio (void from the start).

res ipsa loquitur – the matter speaks for itself.  I feel a bit awkward having missed this stalwart out of the original article, so thank you for suggesting it.

ex turpi causa non oritur actio – no action may be brought that is based on illegal or immoral conduct.  One correspondent expressed himself “rather surprised” that this one (his favourite) had been missed out.  I agree it is pleasant, but it is far from being my favourite.

audi alteram partem – hear the other party.  One of the two key rules of natural justice to ensure a fair hearing (the other being nemo iudex in causa sua – no-one may be a judge in his own case).

bona fide – in good faith.  How could we overlook this one, particular in the context of Equity’s darling, the bona fide purchaser of a legal estate for value without notice.  That topic deserves its own article sometime.

bona vacantia – unowned goods, following (typically) the dissolution of a company.

omnia praesumuntor rite esse acta – everything shall be presumed to have been done correctly.  This applies to acts of an official or judicial character and is sometimes termed “the presumption of regularity”.

usque ad medium filum (viae) – up to the middle of the way (or roadway).  A vital aid to ascertaining which landowners are presumed to own the land beneath a public highway following its closure.

in rem and in personam – respectively relating to property and persons (the distinction typically being between a remedy that binds anyone who happens to acquire the property, as against only one person who happens to own it now).

eiusdem generis – of the same kind.  Used to indicate that general words are interpreted in the same manner as specific words that precede them.

alibi – elsewhere.  Much misunderstood, but used properly only in the sense of an accused person claiming to have been elsewhere at the key moment.

verbatim – word for word.

That will do for this weekend.  I am pretty confident that correspondents will supply sufficient material for a third article to be published sometime in the future.  Remember that what we are looking for are concepts related to property law that are easier to express in Latin than in English.

 

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No competition 18 April 2014

Competition law is something that property lawyers read about in newspapers, not practise.  That was the position until three years ago, anyway.  Until 6 April 2011, so-called “land agreements” were outside the scope of the “Chapter 1 prohibition”, by reason of the Competition Act 1998 (Land Agreements Exclusion and Revocation) Order 2004.  The Chapter 1 prohibition outlaws agreements that have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom.   Any such agreement is VOID.

In passing, the curious thing about the exclusion of land agreements from the Chapter 1 prohibition was that the definition seemed to apply only to provisions (eg restrictive covenants) created by and accepted by people in their capacity “as holder of an interest in the relevant land”.  That suggested that where the provision was inserted for any other reason (eg a restriction inserted for an anti-competitive purpose), then it was not a land agreement and therefore the exclusion did not apply to it anyway.  So the exclusion operated only to those agreements that were not anti-competitive in the first place.  Most odd – like much of competition law generally.

Anyway, to cut a long story short, in 2010 the Government sensibly decided to withdraw the exclusion, which it did by the ludicrously named Competition Act 1998 (Land Agreements Exclusion Revocation) Order 2010.  Possibly the shortest SI ever, it read simply (ignoring the headings):

1. This Order may be cited as the Competition Act 1998 (Land Agreements Exclusion Revocation) Order 2010 and shall come into force on 6th April 2011.

2. The Competition Act 1998 (Land Agreements Exclusion and Revocation) Order 2004 is hereby revoked.

Had I been asked at the time, I think I might have been tempted to say that land agreements were now to be subject to the Competition Act, rather than saying that they were no longer not to be subject to it, but that’s a matter of personal preference I suppose. 

ANYWAY back to the point of the story …

Remember that “land agreements” are now subject to competition law.  Most importantly, this includes commercial leases.   What would happen differently in future ?   The most common potentially anti-competitive provision in a lease is a landlord’s covenant agreeing not to let a nearby unit (typically in a shopping centre) for a competing use (for example one coffee chain extracting a covenant from the landlord not to let a nearby unit to another coffee chain, or (more extreme) to allow any other tenant to sell coffee.  Would such a covenant be valid in future ?  The Government issued some guidance, suggesting circumstances in which the covenant could be valid.  In the end, everything depends upon the facts, of course.

We have just heard about what is apparently the first case in which the court had to consider this new area of law.  It was Martin Retail Group Ltd v Crawley BC, in the Central London County Court.  The issue arose within lease renewal proceedings under the Landlord and Tenant Act 1954.  The landlord wanted to introduce a new covenant stopping the tenant selling so-called “convenience goods”, to prevent competition with a convenience store in the same parade of shops.  The landlord seemed to be motivated for good reasons: if shops were permitted to broaden the range of items they sold, it might put smaller shops out of business and reduce the attractiveness of the shopping parades for everyone.  So the issue was whether this reason fell within the exemption in the Competition Act under which a restriction of competition is permitted where “it contributes to improving production or distribution, or promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit”.

The burden of showing that this is the case falls upon the person trying to show it – the landlord in this case.  The judge decided that the landlord had failed to show that the restriction in the lease would be of benefit to the local people.

The case did not decide that this clause should therefore not be included in the new lease that the landlord was required to grant to the tenant.  This was a preliminary issue, in which the court merely held that the proposed clause that the landlord was seeking was in breach of the Chapter 1 prohibition.  Whether or not that clause is to be included in the lease is now a matter for the parties to agree, or for the court to determine if the parties fail to agree.  (Curiously, the tenant ought not to mind the inclusion of the clause, now that the court has declared it to be in breach of the chapter 1 prohibition (and therefore void).  But if I were the tenant, I would still be saying to the landlord that it is not going into my new lease.)

The most likely occasion on which we commentators expected to see a case about competition law and land agreements was in circumstances involving an exclusivity clause.  That it occurred in lease renewal proceedings (which are relatively rare anyway) came as a great surprise.

The transcript of the case is available here.

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Weekend musings: Latin lives on in the law 12 April 2014

The use of Latin phrases in the law used to be the norm, but it is seen much less frequently nowadays.  Every so often, however, one (if a lawyer, at least) comes across a concept that is much easier to express (if not to say) in Latin than in English.  Some examples that have occurred to me are set out below.

Note that it is not the purpose of this article to discuss the relevant law.  Refer to a legal textbook such as Megarry & Wade, or hire me to run a training session for you.

caveat emptor – let the buyer beware.  Met every week on the BBC’s radio programme “Moneybox”.

cuius est solum, eius est usque ad coelum et ad inferos – the owner of the soil owns it up to the heavens and down to the centre of the earth (technically “the underworld”).  

mutatis mutandis – with suitable changes made.  Saves having to work out what those changes are.

obiter dictum – a comment from a judge that is not necessary to reach the decision in the case and therefore not binding in future cases; sometimes of assistance in the future but more often tends to muddy the legal waters.

quicquid planatur solo cedit – whatever is attached to land becomes part of the land.  If I build a house in your garden, it becomes your house and there is nothing we can do to prevent that happening.

per incuriam – a view from a judge expressed without considering precedent (and on occasions apparently without fully considering the consequences)

ratio decidendi (or often just ratio) – the reason for a court’s decision

versus (always abbreviated to v) – against (as in A v B)

and perhaps my favourite

nemo dat quod non habet – one cannot pass ownership to another person of something that one does not own.  Particular relevant to those tempted to buy stolen goods.  The thief has no title, and you will not obtain any title, to stolen goods.  I found a magnificent use of this phrase this week in the House of Lords judgment in Fairweather v St Marylebone Property Co Ltd [1962] UKHL 1 where, in a stunning display of bilingualism, Lord Radcliffe wrote:

“I conclude, therefore, that the effect of the “extinguishment” sections of the Limitation Acts is not to destroy the lessee’s estate as between himself and the lessor; and that it would be incorrect to say that if he offers a surrender to the lessor he has nothing to surrender to him in respect of the land in the possession of the squatter.  Nemo dat quod non habet, and I dare say that he does not, …”

Readers will no doubt have their own favourite Latin phrases (indeed I can think of several of my followers (you know who you are) who could write books on the subject).  Details please to latinphrases@nullfalcolegaltraining.co.uk, and we will revisit the topic when we have sufficient material.  Which I reckon is likely to be sometime around 11.15 am on Monday. 

 

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Coming to a nuisance 9 April 2014

If you buy a house and later find out that some noisy activity is taking place nearby, so noisy that in law it amounts to a legal nuisance, do you have any recourse?  Can you put a stop to the activity that is causing a nuisance, or are the perpetrators entitled to say that you have no right to interfere?  The activity has been happening on that land with no complaints from neighbours for many years, and it was your (finger-jab) buying that house that has caused the problem.  So, they say, it’s not them.  It’s you.

That was one of the issues that the Supreme Court had to address recently in the case of Coventry v Lawrence [2014] UKSC 13.  One cannot help but feel sympathy for all the participants in the case.

For my many non-lawyer readers (OK – hello Chris and Andrew), a legal nuisance can be defined, in general terms, as an action on the part of a defendant that is not otherwise authorised, and that causes an interference with the claimant’s reasonable enjoyment of his land.  Famously, in Sturges v Bridgman (1879) 11 ChD 852, Thesiger LJ observed that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” (that was, of course, before the Jubilee Line Extension was built and Bermondsey tube station opened.  It has not yet been established whether the aphorism would necessarily apply to those locations today).

The facts of Coventry v Lawrence revolved around a speedway racing stadium at Mildenhall in Suffolk.  It was constructed in 1976 and used for various noisy activities ever since.  For planning purposes, it was being used lawfully.  Nearby was a motocross track, again used lawfully.

You can anticipate what happens next.  In 2006 Mr and Mrs Lawrence bought a house called “Fenland” only 500 yards from the stadium.  Irritated by the noise, they first complained to the local authority and then in 2008 issued proceedings for an injunction against the owner of the stadium, Mr Coventry.

The Lawrences had to move out of “Fenland” in April 2010 after it suffered a serious fire.  No-one has lived there since.

Lord Neuberger in the Supreme Court summarised the law relating to the concept of “coming to a nuisance”:

“In my view, the law is clear, at least in a case such as the present, where the claimant in nuisance uses her property for essentially the same purpose as that for which it has been used by her predecessors since before the alleged nuisance started: in such a case, the defence of coming to the nuisance must fail.  For over 180 years it has been assumed and authoritatively stated to be the law that it is no defence for a defendant to a nuisance claim to argue that the claimant came to the nuisance.”

Lord Neuberger went on to say that the answer may be different where the claimant builds on, or changes the use, of the property after the defendant has started the activity: he or she should not necessarily have the same rights to complain about that activity.  He said “That raises a rather different point from the issue of coming to the nuisance, namely whether an alteration in the claimant’s property after the activity in question has started can give rise to a claim in nuisance if the activity would not have been a nuisance had the alteration not occurred.”  He decided that it was unnecessary to decide that point in this appeal.

You can read the Supreme Court’s judgment here.

Two other points

The case is of interest for two other reasons.  First, in a startling change to the established law, the Supreme Court re-wrote the principles that govern the exercise of the courts’ jurisdiction to award damages instead of an injunction.  That needs more comment than there is space for today.

Secondly, the case was an opportunity to recall one of Lord Denning’s best known cases, Miller v Jackson [1977] 1 QB 966.  On facts very similar, but more physical, to the facts of this case, Mrs Miller complained about the cricket balls that landed in her garden adjoining the cricket ground.  Cricket had been played on the village green for many years before the Millers’ house was built as part of a greenfield housing development and they moved in.  Lord Denning on that occasion was in the minority, and held that there was no nuisance.  The other two judges held that it was “no answer to a claim in nuisance for the defendant to show that the plaintiff [now called “the claimant”] brought the trouble on his own head by building or coming to live in a house so close to the defendant’s premises that he would inevitably be affected by the defendant’s activities, where no-one had been affected previously”.

Lord Denning was renowned for his poetic descriptions of village life at the start of his judgments, and made the most of the facts of this case (for a true Denning experience, you have to read the words aloud with a broad Hampshire accent).  It is rather a long introductory paragraph, but it is difficult to know where to curtail it, and so I am reproducing it in its entirety:

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore; he has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”

Astute readers will already have spotted that this case might not be decided in the same manner after Coventry v Lawrence, on the basis that the defendant’s activities pre-dated the plaintiff’s building work, and it was only as a result of that work, and the subsequent use of the new building, that the activities became a nuisance.  However, as Lord Neuberger said, that is a decision for another day.

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Just say the magic words 3 April 2014

So there I was, planning a simple blog article tonight to remind people of my existence, and it hasn’t gone quite the way I planned it.

The original article was going to go something like this.

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CPT conference “Business Occupation, Tenancies and the Green Agenda” – Central London – Tuesday 8 April 2014

This is a whole-day conference.  Although it has “green” in the title, the programme is not designed for ’green experts’.  This event is a practical guide focusing on why and how to embrace, and profit, from the green agenda.   It is aimed at typical property advisors – whether landlord and tenant agents, property managers, valuers, and occupiers themselves; and to property lawyers, developers and investors.

I will be speaking on “New law and regulations”, which will cover recent developments in the area of the Carbon Reduction Commitment (unaccountably one of my specialties) and the forthcoming Minimum Building Energy Performance Standards (MEPS).  This is the name given to the requirement in section 49 Energy Act 2011 (not yet in force) that from an unknown date between now and 2018 it will not be permissible to grant a lease of a building the EPC rating of which is lower than E, unless you fall within one of the exceptions.  No-one knows what the exceptions are going to be yet.  We are expecting a consultation on that imminently (but don’t hold your breath – DECC is finding it more difficult to finalise the consultation document than originally expected).  Somehow I have to fit all that into 50 minutes.

Other speakers will cover tax incentives, technological advances, the green leases toolkit and how to manage risks.  It promises to be an interesting day.

Full details appear here on the CPT Events website.

Falco Legal Training blog readers: quote Promotional Code GR1 to receive a discount of £55 off the cost of attending the conference.

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But then, at midday, colleagues e-mailed me to say that the Court of Appeal had handed down judgment in the case of Friends Life Ltd v Siemens Hearing Instruments Ltd [2014] EWCA Civ 382The case concerned a break clause that required the break notice to specify particular wording, for reasons that are too complex to explain here (but are logical for those of us who were around at the time when the lease was entered into).  For a reason known only to the tenant’s solicitors, they did not include the “magic words” in the break notice.  At first instance, the notice was held valid, on the basis that it was clear what it was meant to achieve.  The landlord appealed, and the Court of Appeal has overturned the first instance decision, holding that the break notice was invalid.

This was the only realistic result, given the clear warning about the need for compliance with conditions in break clauses from Lord Hoffmann in Mannai Investment Company Ltd v Eagle Star Life Assurance Company Ltd [1997] AC 949.  In one of last century’s more memorable dicta, he said (again in the context of a break clause in a lease):

“If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease.”

No-one can complain about that, and so it is a little surprising that the tenant even thought it worthwhile appealing the case.  Perhaps the case is being funded by the tenant’s solicitors’ indemnity insurers.

What is extraordinary is that in my forecast on this website on 12 February 2014, mulling over how the Court of Appeal was likely to decide five important forthcoming appeals (“Five important landlord and tenant appeal decisions awaited“), I forecast that the Court of Appeal would uphold the first instance decision.  I cannot explain today why I made that forecast.  Presumably I was hoping that justice, rather than precedent, would prevail.  Lewison LJ might have been having the same thought himself when he said, in the last paragraph of his judgment:

“I appreciate that that [holding the break notice invalid] is a harsh result, but hard cases make bad law.”

What happens next?  The Court of Appeal refused the tenant permission to appeal to the Supreme Court.  The tenant could in theory ask for leave to appeal from the Supreme Court itself.  However, given the simplicity of the blue paper/pink paper dictum from Lord Hoffmann set out above, it seems to me virtually unthinkable that the Supreme Court would agree to hear a further appeal.

Click here for a copy of the Court of Appeal’s decision.

 

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Land Registry to require photographs of properties as a fraud-prevention measure 1 April 2014

The Land Registry refuses to reveal the amount of fraud that it encounters, or (much more interestingly) the tricks used by the fraudsters in an attempt to part proprietors and lenders from their money.  We do know from the most recent Land Registry Annual Report (2012/13) that fraud cost the taxpayer almost £4.4 million in that year.  The Land Registry is clearly concerned, and has introduced an unexpected new fraud-prevention measure.

With effect from 1 July this year, every application for registration of a transfer, charge or lease, and all first registrations, will need to be accompanied by two different, recent, coloured photographs of the property.  These will form part of the register, within the Property Register (section A of the register).  Each photograph will need to be certified on the reverse by the property owner as being an accurate depiction of the building, in the same way as passport photographs have to be certified.

Photographs must be in landscape format, unless the property is one of a number of specified categories of “tall thin buildings” such as lighthouses, towers, shards of glass, gherkins, cheese graters and blocks of flats designed by Erno Goldfinger (in which case portrait format is permitted).

Photographs have to be taken in sunny conditions, except in the North West and North East of England, where photographs in drizzle and snow respectively are permissible.

Buildings above ground have to be shown with the roof uppermost (except in the case of the extension to the Tate Modern, since no-one has a clue which is the top and which is the bottom of that building).  Buildings below ground (such as the new Crossrail railway stations) present more of a problem and further guidance on how to take a photograph of the outside of an underground building is keenly awaited.

The photograph may also contain images of people, so long as they are not looking at the camera in a maniacal fashion, having taken the photograph themselves and with their face taking up more than 55% of the area of the photograph (this is thought to relate to the phenomenon known as a “selfie” – more details available from any 15 year old child).

This new requirement has come as a surprise to practitioners, given that identity theft is generally believed to relate to the identity of the proprietor rather than the identity of the building.  We spoke to a representative of the RICS, Mr Ralf O’Lipo, who reminded us of the curious case of Platform Funding Ltd v Bank of Scotland back in 2009, in which the Court of Appeal held that a surveyor had been negligent for valuing the wrong property (5 Bakers Yard in that case, instead of 1 Bakers Yard as intended).  This new requirement is perhaps a delayed reaction to that case, although it has to be said that in a row of similar houses (whether terraced, semi-detached or detached), one house looks remarkably like the one next door.

You can find further details of this new requirement on this website.

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