Property Newsletter: January 2019

Welcome to the January edition of the Property Newsletter from Hardwicke.

Happy new year! For our first 2019 newsletter, Rupert Higgins considers the limits of the court’s jurisdiction to grant relief from forfeiture for non-payment of rent, Daniel Gatty discusses a recent case on vesting orders, and John de Waal QC spins my Wheel of Questions.

Simon Allison – Editor

John de Waal QC has been busy mediating and attending mediations as an advocate this month.

Brie Stevens-Hoare QC has been busy securing and varying injunctions, the season of peace and goodwill seems to have been a favoured time for peaceable re-entry. She’s also been tripping around the country, Manchester, Great Yarmouth and Devon for hearings and mediations.

Rupert Higgins has risen periodically from his bed of sickness (like everyone else this winter it seems) to advise on whether the opening up of blocked-up windows amounts to a trespass on the landlord’s retained property.

Daniel Gatty spent a week at the beginning of December in Exeter for a trial about land in north Devon. He spent the middle of December advising and drafting on such diverse L & T issues as leasehold enfranchisement of buildings let on long business tenancies, rent review of office premises and whether a commercial lease had been successfully excluded from the operation of the 1954 Act. He spent the end of December happily doing very little.

Jamal Demachkie had a prolonged Christmas break, but has come back to work with a vengeance, including a trial on nuisance, a TOLATA application and some tricky Prof Neg pleadings. After a messy week of work, he is looking forward to his hard-earned(?) skiing holiday.

Andrew Skelly has been advising on several interesting easement matters, including a group of residents in relation to a prescriptive right of way over various properties to a coastal path.

Cameron Stocks spent the last few months of 2018 seconded to a city firm in the property litigation team working on matters ranging from mortgages, rights of first refusal, 1954 Act renewals and rent reviews. Whilst he thoroughly enjoyed the time in house, Cameron is looking forward to a busy start to 2019 with possession claims and service charge disputes galore.

Monty Palfrey is predicting that 2019 brings more work relating to licensed premises, and less relating to AirBNB!

Simon Allison has spent much of the last four weeks settling a number of significant cases. Whilst losing 15 days of trials isn’t good for business, clients seem happy!

After an amazing trip to Jordan over the Christmas break, Amanda Eilledge is settling back into the swing of things and has been drafting a defence in a fascinating professional negligence claim involving charging orders.

Lina Mattsson spent December in trial. She argued about equitable remedies, fraud and clean hands; unreasonable services charges; and final mandatory injunction at an interlocutory stage. Lina really needed a Christmas full of meatballs and herring to recover.

Fouladi v Darout Ltd [2018] EWHC 3501 (Ch)

Breach of covenant – nuisance – quiet enjoyment – landlord’s duties- remedies

The facts

C was the long leaseholder of Flat 62. D1 was the lessee of Flat 66, which was directly above Flat 62. D2 and D3 lived at Flat 66. D4 was the landlord of the block of flats. All flat leases were substantially the same and required the lessee to cover the floors with material suitable to avoid the transmission of noise (Reg. 14) and to obtain the landlord’s consent for any alterations (Clause 3(f)).

C’s case was that Ds had made extensive alterations, included the installation of new flooring and the removal of carpeting which had resulted in excessive noise transmission to Flat 62. C sought an injunction for reinstatement of all the alterations and for appropriate sound deadening measures and damages against D1-3. C also made a claim against D4 claiming that the landlord had given D1 a licence for alterations in 2010 which rendered the landlord directly responsible for the nuisance and/or breach of quiet enjoyment.

The trial judge HHJ Parfitt at Central London County Court, found that no licence to alter the floors had been obtained by D1, in breach of Clause 3(f) and that the works had given rise to an actionable nuisance on the part of D1 to D3. He ordered that remedial works to the floor be carried out and awarded damages of £40.18 per day until the works were completed. In substitution for an injunction, the judge made an order restraining D2 and D3 from living in Flat 66. The judge dismissed the claim against D4.

D1-3 appealed. C appealed against the order dismissing the claim against D4. The appeals were heard by Mr J Morgan who dismissed all appeals.

C’s appeal

A landlord was not liable for a nuisance caused by his tenant merely because he did not take steps to prevent what was being done, unless it participated in or authorised that nuisance. Although D4 could have taken steps to prevent D1 from carrying out the works, as it knew that the works were being carried out in breach of Clause 3(f), there was no finding by the trial judge that D4 knew that the works involved a nuisance. As a result, the landlord was not liable for that nuisance by participation and not in breach of the covenant for quiet enjoyment.

D1’s appeal

Although there had been no evidence as to the physical nature of the floor before the 2010 works, the judge had been entitled to find the changes made to the floor in 2010 had caused the transmission of the noise as there had been was no problem of noise transmission through the floor before 2010. The trial judge’s careful and reasoned approach to the evidence could not be criticised.

Further, in assessing damages for breach of contract, the judge had been correct to assess them on the basis of breach of contract and assess the extent to which the amenity value of Flat 62 was damaged by the nuisance. D1 had not obtained consent for the works to the floor in breach of Cl.3(f) and was in breach of Reg.14. It followed that D1 was liable for damages for breach of contract which should reflect the loss of amenity to Flat 62. The judge had accordingly been entitled to award damages reflecting the effect of the use and amenity of Flat 62 resulting from the floors in Flat 66 falling below the contractual standard being £281.25 per week from the date D2&3 moved into the flat. The judge had also been entitled to make a mandatory order requiring D1 and possibly D2&3 to carry out remedial works to abate the nuisance.

D1&2’s appeal

D2 and D3 argued that as they were not parties to the lease, terms of the lease were irrelevant as regards their liability. Mr J Morgan dismissed this argument, noting that this argument was contrary to D2&3’s position at trial. Further, even if this were correct (a point not decided), the trial judge had found as a fact that although D1 was responsible for those works as the lessee, D2 and D3 had chosen what works were to be done. On this basis there is no distinction to be made between the position of the D1 and D2&3 on the facts of this case. D2&3 were therefore liable in nuisance.

Each month, a member of our property team has to spin ‘Simon’s Wheel of Questions’ and answer the first 3 questions that come up. This month, John de Waal QC tried his luck.

1. What does success mean to you?

Success means firstly looking after my family and having happy children (I have three ranging in age from 2 to 24 so quite a handful). Secondly, it means having enough interesting and enjoyable work to make going to work a pleasure (it is). Thirdly, being able to pay the bills!

2. Where do you most hope to visit?

I spent three months travelling around India at the age of 18 between school and university in the days when you could do India on 50p a day. I would love to go back. The other country which fascinates me is Mexico. When my grandmother’s family was forced to leave Austria in 1938 they dispersed all over the world and some went to Mexico, it would be great to meet up with my distant cousins.

3. What was your first job?

My first job was as a Christmas postman in the university vacations (do students still do this job) – I was responsible for loading mail bags onto the special mail trains at Canterbury were we lived. Sometimes a bag would arrive with its label missing – the instructions from the full time postmen were that these were to go into the compartment marked “Aberdeen via Gatwick”. Those were the days!