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Update on Commercial Property for 2019 With Parliament somewhat distracted for most of 2019 so far, recent developments in property law have arisen mainly outside of legislation (with the exception of the long-awaited change to SDLT). Set out below are a few examples which may be of interest to practitioners in England and Wales. 1. SDLT Deadlines For any transactions with an effective date on or after 1 March 2019, the deadline for filing a land transaction return and paying the relevant stamp duty land tax has been reduced from 30 to 14 days. Forms SDLT 3 and 4 have been amended, reducing the information required. The existing versions of the forms will remain valid if delivered prior to 1 June 2019. 2. Completion by Post The Law Society has published an updated version of the Code for Completion by Post following the combined appeals in P&P Property Ltd v Owen White & Catlin LLP and Dreamvar (UK) Ltd v Mishcon de Reya (a firm) [2018] EWCA Civ 1082. Readers may recall that in Dreamvar, both the buyer’s and seller’s solicitors were held liable for breach of trust for parting with the completion monies when the seller turned out to be a fraudster, despite not having been dishonest themselves. The Code is now stated to apply to both residential and commercial conveyancing transactions (where adopted) and changes have been made to give buyers greater security and reestablish faith in the conveyancing process. The new Code does not itself change the position at law, but rather reflects the recent cases. The new Code will become effective on 1 May 2019, and includes the following key changes: • Paragraph 2: it is made clear that references to the “Seller” are to the genuine seller, being the person entitled to convey the title to the property. However, sub-paragraph (ii), which defines the “Seller’s Solicitor”, does so by reference to the solicitor purporting to act for the “party named as the seller”, rather than the “Seller”. The difference in these definitions is intended to ensure that the seller’s solicitor remains bound by its undertakings, even if the person they are acting for is not the genuine seller. • Paragraph 4(ii): it is now overtly clear that a seller’s solicitor will hold any purchase money received on trust for the buyer and is under a duty to either pay it out in respect of a genuine (i.e. not fraudulent) completion or to return it. • Paragraph 8(i): the Code’s guidance now states that this existing undertaking (to have the seller’s authority to receive the purchase money on completion) refers to the authority of the true owner. 3. Rights of Way The Court of Appeal has recently handed down its judgement in the case of Parker and another v Roberts [2019] EWCA Civ 121 which covered issues relating to implied easements and rights of way. The facts of this case were key to the ruling. The claimant’s (C) predecessor had bought a house (the House), adjoining a plot of land already owned by them (the Plot). The predecessor covenanted on behalf of himself and his successors in title not to build on the Plot and to pay towards the cost of maintaining a private road. The conveyance of the House to C granted an

express right of way over a private road, which provided access to the House “for all purposes connected with the present and every future use of the land hereby transferred”. C later obtained planning permission to build a house on the Plot. In order to access the Plot, he needed to use the private road. The owners of the private road argued that although C had a right of way in respect of the House, it did not extend to the Plot. The Court held that: • The “land hereby transferred” in the conveyance to C did not include the Plot, so the right of way over the private road could not be used for its benefit. • There was no implied easement over the private road on the basis of reasonable necessity, despite the plans to build on the Plot. Where there was an express right, an implied right would only arise in exceptional circumstances. • A right of way did not arise simply because the person claiming the benefit of it was subject to the burden of contributing to the cost of maintaining the road. This was an attempt by C to flip the benefit and burden principle, i.e. that a party cannot take the benefit of an easement without also accepting the burden. This case does not itself establish new law, but rather consolidates existing principles. It is an interesting example of the Court refusing to grant an implied easement on a number of separate grounds and serves as a useful illustration to practitioners to ensure that all necessary rights are set out clearly and in full in transfer documents to avoid future disagreements. 4. Adverse Possession In the recent case of Thorpe v Frank and another [2019] EWCA Civ 150 the Court of Appeal held that the repaving of a forecourt was sufficient to amount to adverse possession of land. The applicant had in 1986 repaved an area of forecourt forming part of the neighbouring property without objection. The area was made to appear as though it formed part of the applicant’s property and was eventually fenced off in 2013. The applicant then subsequently applied to be registered as the proprietor of the paved land. The neighbour argued that the repaving of the land was not sufficient to amount to possession. The Court was of the view that repaving the area constituted possession, and that the applicant also had the necessary intention to possess. It was further held that what amounts to a sufficient degree of “exclusive physical control” depends on the nature of the property and the way in which property of that type was normally used. Enclosure of the relevant property was not an absolute requirement in order to prove adverse possession, and it did not matter that the neighbouring owner could continue to pass and repass over the area as before. n

Meghan Jobson Associate (in Commercial Property), Farrer & Co. CENTRAL LONDON LAWYER 15

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Central London Lawyer May 2019  

The Official Law Journal for the City of Westminster Law Society. Featuring the latest news and features on International events, property a...

Central London Lawyer May 2019  

The Official Law Journal for the City of Westminster Law Society. Featuring the latest news and features on International events, property a...

Profile for benham