Real Property Update: September 2017

Editors Comment

Kerry Bretherton QC

I am delighted to introduce the first edition of the Tanfield real property newsletter. Chambers frequently provides updates on commercial and residential landlord & tenant matters and has been regarded as a market leader in these areas for many years. Real property is an area of substantial growth for chambers and we considered that it was time to complement the regular seminars we provide by a monthly update for those who instruct us in this area of work. The newsletter will be produced on a monthly basis and will include a featured article and summaries of the most recent and relevant cases.

This month the article is written by Andrew Butler, who as well as being a member of Tanfield’s Property Team is also head of our Business and Commercial Group. Andrew is regularly ranked in the directories for Real Estate Litigation. He considers expert determinations, an increasingly popular method of dispute resolution, and one recent case where he appeared in a determination was undermined by a flawed property valuation. The case studies are provided by Richard Alford who is 2011 call and accepts instructions in all types of property disputes.

Grim Determinations

Andrew Butler explores a recent case which illustrates the limitations of expert determinations.

Expert determinations are an increasingly popular way of resolving property disputes. One of their attractions over arbitration is that they are thought to be less formal processes. In particular, experts are not required to observe the rules of natural justice (although they must treat the parties fairly); nor are they constrained by the technicalities of e.g. the Arbitration Act 1996 (“AA 96”). Nevertheless, as the recent case of Griffin v Wainwright graphically demonstrated, there are limits to the procedures that experts can adopt.
Read the full article here.

September Case Summaries

Richard Alford provides this months summaries:

NRAM Plc v Evans [2017] EWCA Civ 1013 Kitchin LJ; David Richards LJ; Henderson LJ

Land Registration

The Court of Appeal held that the registration of a voidable disposition was not a mistake within the meaning of schedule 4 of the Land Registration Act 2002. There is a distinction between the consequences of the recording of void and merely voidable transactions in the register.

Read the full summary here.

West End Commercial Ltd v London Trocadero (2015) LLP [2017] EWHC 2175 (Ch) Snowden J

Proprietary Estoppel and Civil Procedure

Mr Justice Snowden held that proprietary estoppel could not be relied upon to prevent a party exercising a contractual right.

Read the full summary here.

Welford v Graham [2017] UKUT 297 (TCC) Morgan J

Prescriptive Easements, Evidence, Registration

When considering the burden of proof in relation to an alleged easement by prescription, the Upper Tribunal held that, although the legal burden of proof to prove that the use was ‘as of right’ lay on the party seeking to establish the easement, where that party had successfully proved that its use had been open for the required period, a rebuttable presumption arose that such use was not with the permission of the servient owner. Merely proof that there had not been an actual grant would not be sufficient.

Read the full summary here.