More and more frequently, courts are admitting into evidence the subsequent conduct of adjacent owners (i.e. after creation of the boundary) to determine the precise location of a boundary between the owners’ properties. See Bradford v James [2008] EWCA Civ 837 where Mummery LJ states that “extrinsic evidence of surrounding circumstances and subsequent acts, though not admissible to contradict or vary the [original] conveyance plan, is admissible to clarify the aspects of it relating to the position of the boundary.” Full practical analysis of this case will appear in the August issue of the CPI Update. The case itself is at: http://www.bailii.org/ew/cases/EWCA/Civ/2008/837.html

Over the past couple of weeks, the following content has been added to the website:
A draft underlease of part – see Underlease of part
A draft legal charge - see Legal charge
A draft legal opinion clause for sale contracts - see Legal opinion
A draft agreement for lease – landlord’s minor works - see Agreement for lease (minor works)
Key points on easements – see Easements
Key points on AGAs, guarantees and rent deposits - see Security for performance
Key points on boundary matters - see Boundaries

Tenants frequently enter into occupation on an undocumented basis. They shouldn’t, but they do. Property lawyers are then left to work out the precise nature of the occupation agreement entered into. Is it a tenancy at will, falling firmly outside the 1954 Act? The Recorder thought so in Manton Securities Limited v Nazam [2008] EWCA Civ 805 despite a period of occupation running from 1998 to the present day. Or is the tenant, paying rent on a quarterly basis, a 1954 Act protected periodic tenant (but without the ability to serve a section 26 request)? The third way identified in this case was that the tenant had a fixed term equitable lease by estoppel as a result of expenditure on the premises that the tenant had been encouraged to incur. Full practical analysis of this case will appear in the August issue of the CPI Update. The case itself is at: http://www.bailii.org/ew/cases/EWCA/Civ/2008/805.rtf

The risk of domestic and small business properties suffering uninsured damage as a result of floods has receded considerably following a joint announcement (11th July) by the Government and the Association of British Insurers on a long-term investment strategy to deal with flood prevention, a reassessment of how the planning system prevents inappropriate development in flood-risk areas, and a commitment to the wider availablity of flood risk insurance. See ABI/Government statement; and see also the publication of a revision of the ABI statement of principles on flood insurance (applicable in England) at Revised ABI principles.

One appreciates the difference between a landlord requiring “a reasonable alternative guarantee” and its requiring “reasonable alternative security” for performance of tenant covenants. However, one might assume that the security referred to is of a third-party variety, or in the nature of a rent deposit. Yet, an assignee of a lease itself provides security, and, where a guarantor is seeking terms for a release, the covenant of the assignee alone could amount to "reasonable alternative security". So says the High Court in Landlord Protect Limited v St Anselm Development Company Limited [2008] EWHC 1582 (Ch). See http://www.bailii.org/ew/cases/EWHC/Ch/2008/1582.html

Following the recent July 1st commencement date for mid-sized commercial buildings, commercial search providers seem to be jumping on the EPC bandwagon and offering the provision of energy efficiency inspection services. See EPCs with Searchflow.

You may have received notice of the Land Registry’s plan to increase the scanning and electronic retention of documents from 14th July. See Scanning and Retention.

The Government proposes moving forwards (through inclusion of provisions in the Planning Bill) with amendments to section 237 TCPA 1990 to facilitate a wider overriding of rights where land is acquired by CPO for planning purposes. Click on Easements and section 237 TCPA 1990.

For those operating in the social and private rented housing sector, the DCLG has published a guidance note on the need for EPCs. Click on EPC Landlord's Guide.

The July/August edition of the Commercial Property Information Update has been published on this website.