Our top 10 property law cases 2023

Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4 (nuisance)

A legal nuisance can be caused where a person does something on their own land which wrongfully interferes with the ordinary use and enjoyment of a neighbour’s land.

In this case, leaseholders of a block of flats adjacent to the Tate Modern successfully claimed that a viewing platform, from which the claimants’ flats (with floor-to-ceiling glass walls) could easily be peered into, constituted a nuisance. A key consideration was the fact that hundreds of thousands of visitors used the platform every year, which is not a ‘common and ordinary’ use of the land.

The unusual circumstances of this case have led some to speculate that its wider impact will be limited. But this was probably the most headline-worthy property case of the year.

Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 (landowner injunctions)

A landowner can apply to court for an injunction to prevent unlawful occupation of their land.

Local authorities wanted to prevent Gypsies and Travellers from camping on their land, as they would not know the identities of the individuals and they could change from day to day.

The Supreme Court found that the local authorities were entitled to ‘newcomer injunctions’. These are an entirely new form of injunction, which are granted without prior notice against persons who cannot be known at the time the injunction is granted. They, therefore, potentially apply to anyone in the world. The court said that they should only be used under specified circumstances, such as a compelling need to enforce public law, and should be subject to procedural safeguards to protect newcomers’ rights.

The recognition of this new type of injunction is significant and no doubt welcomed by landowners to prevent unlawful entry/trespass on their land. It may also be of used to stop protests pre-emptively.

Merton Council v Nuffield Health UKSC 18 (business rates)

A ratepayer can claim business rates relief of up to 80% on premises where they are a charity and use the premises mainly for charitable purposes.

This decision of the Supreme Court brought clarity to the charitable sector about the availability of this relief.

Nuffield (a registered charity) were claiming this relief in relation to one of its members-only fee-paying gyms. It was found that Nuffield could claim this relief for the gym premises, even though it was not carrying out charitable activities at this site, because it was still furthering Nuffield’s stated charitable purposes.

B&M Retail Limited v HSBC Bank Pension Trust (UK) Limited [2023] EWHC 2495 (Ch) (unopposed lease renewal)

Under the unopposed lease renewal process of the Landlord and Tenant Act 1954 (LTA 1954), a landlord can seek to include a break clause in a new lease granted. This can show there is a “real possibility” of redevelopment by the landlord of the tenant’s premises.

In this case, the court ordered that B&M’s new lease should contain a rolling redevelopment break exercisable immediately (on six months’ notice), giving significant weight to the landlords’ redevelopment plans.

This is a welcome decision for landlords looking to redevelop and who need to take steps to obtain possession from tenants who have the protection of the LTA 1954.

Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd [2023] UKSC 2 (commercial service charge)

Where a tenant pays service charge under a commercial lease, the landlord is usually required to provide a certificate at the end of the service charge year, certifying the sums payable by the tenant.

In this case, a lease stated that the landlord’s end of year certificate was ‘conclusive’ (in the absence of mathematical error or fraud) and, on that basis, the landlord argued the tenant could not challenge the service charge stated in the certificate.

The Supreme Court decided that the service charge was payable on presentation of the certificate, but this did not prevent the tenant from later challenging the amount through the courts (by way of counterclaim).

The decision can usefully be summarised as requiring the tenant to ‘pay now, argue later’, helping landlords with their cash-flow, but also keeping the door open for tenants to challenge the service charge in appropriate cases.

FSV Freeholders Ltd v SGL 1 Ltd [2023] EWCA Civ 1318 (right of first refusal)

A residential landlord looking to sell a block of flats is prevented from doing so without first offering to sell to their tenants (by serving offer notices). This is known as the ‘right of first refusal’ given to tenants under the Landlord and Tenant Act 1987 (LTA 1987). Certain qualifications and conditions apply.

The residential landlord in this case was selling multiple blocks of flats forming separate buildings. It served offer notices on its tenants in relation to the separate buildings, rather than offering all the blocks together. The tenants claimed the offer notices were defective, saying they should have offered all the blocks together. The Court of Appeal dismissed the tenants’ argument. It said the landlord was right to sever the transaction and treat each building separately for the purposes of sending offer notices to tenants.

This decision provides clarity about what a residential landlord of an estate with multiple buildings must do to comply with the LTA 1987.

Gill v Lees News Limited [2023] EWCA Civ 1178 (opposed lease renewal)

Business tenants with the protection of the LTA 1954 have the right to a new lease when their contractual term ends. However, a landlord can oppose the grant of a new lease on certain statutory grounds, including where there are tenant breaches of the repair covenant.

The tenant in this case applied for a new lease under the LTA 1954. The landlord opposed the request on multiple grounds including breaches of the repair covenant. The tenant repaired the premises before the hearing.

The Court of Appeal said you should consider both the state of the premises on the day of the hearing and also look at the tenant’s performance of its obligations throughout the tenancy and assess the various breaches as a whole. The tenant had a poor ‘track record’ as the premises were in substantial disrepair up until the hearing, but had remedied the defects by the hearing, so the court decided a new tenancy should be granted.

This case clarifies the criteria the courts will use to decide whether to grant a renewal tenancy, showing they will adopt a holistic approach. Tenants who wish to maximise their chances of being granted a new tenancy are advised to fulfil their obligations throughout the term as well as remedy any breaches before the hearing.

Vodafone Ltd v Potting Shed Bar and Gardens Ltd & another [2023] EWCA Civ 825 (telecoms)

This is an important decision for developers who have telecoms infrastructure on their land.

A freeholder granted a lease to Vodafone for the purposes of installing and operating telecoms infrastructure. Later, the freeholder granted AP Wireless (a third party) a ‘concurrent lease’ which sat above the existing lease granted to Vodafone; AP Wireless thus became Vodafone’s landlord. AP Wireless then sought to terminate Vodafone’s lease – did it have the legal standing? The Upper Tribunal found it did not, but the Court of Appeal overturned the decision so that AP Wireless could seek to terminate Vodafone’s lease.

This case is welcome news for tenants under concurrent leases looking to terminate telecoms leases and to secure vacant possession for redevelopment purposes.

Waite & Others v Kedai Limited LON/00AY/HYI/2022/0005 & 0016 (building safety)

The Building Safety Act 2022 (BSA 2022) allows leaseholders to apply to the First-tier Tribunal (FTT) for a remediation order against their landlord to remedy building safety defects. This case was the first remediation order made by the FTT since the BSA 2022 came into force.

Leaseholders of a block of flats brought an application against the freeholder for a remediation order to remedy defects, including various inadequacies in the building’s fireproofing, within a period of 18 months. The FTT granted the remediation order and gave the landlord a period of 26.5 months to carry out the works.

The FTT seemed happy to follow the leaseholder-friendly spirit of the BSA and laid out some preliminary principles according to which remediation orders will seemingly be made going forward. One major caveat is the non-recoverability of legal costs, which may limit many leaseholders’ ability to bring claims in practice.

Aviva Investors Ground Rent GP Ltd v Williams [2023] UKSC 6

Section 27A(1) of the Landlord and Tenant Act 1985 (LTA 1985) gives the FTT jurisdiction to make decisions about service charges in residential leases, including whether it is payable and, if so, in what amount. Section 27A(6) provides that an agreement between a landlord and a tenant in a lease is void if it purports to provide for a determination in a particular manner or on particular evidence, any question which may be the subject of an application to the FTT under s.27A(1).

In this case, a residential ‘long lease’ gave the landlord the power to vary the share of service charge payable by each leaseholder, subject to a ‘reasonableness’ requirement. The leaseholders argued that this clause was void under section 27A(6) Landlord and Tenant Act 1985. The Supreme Court upheld the lease provision and found the reapportionment by the landlord was reasonable. The Court found that section 27A(6) protected the FTT’s power to review a landlord’s exercise of its reapportionment power but did not empower the FTT to substitute itself for the landlord. In so far as a lease provision does not purport to exclude the FTT’s reviewing power, it will be valid.

This ruling has been hailed as a significant shift in landlord-tenant relations, particularly because the Supreme Court found that the entire line of cases on which the leaseholders relied were wrongly decided. The FTT will not routinely interfere with the landlord’s discretionary decision-making, giving further comfort to landlords intending to exercise their service charge reapportionment powers.