Forgot to fill in the blanks in an agreement? Not to worry: the court will do it for you. In Westvilla Properties Ltd v Dow Properties Ltd [2010] EWHC 30 (Ch), a draft lease attached to a sale and leaseback agreement had failed to specify a landlord's service charge percentage – the space had been left blank. The buyer argued that the agreement was therefore void for uncertainty. But avoiding a contract for uncertainty is the last thing a court wants to do. The High Court held that “the question of what this draft Intended Lease means when it defines the Landlord's Share of service charges at "[ ] per cent" requires, again, the application of the principles summarised by Lord Hoffmann in Chartbrook Limited v Persimmon Homes Limited [2009] UKHL 38. The question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to have meant the percentage to be, judged from the language they used.” Hoffmann's words in Chartbrook may save a lot of mistaken drafting. He said that "there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant."

A set of draft clauses dealing with landlord and tenant issues arising under the Carbon Reduction Commitment Energy Efficiency Scheme is added to the website. Whilst ongoing industry wide consultation is still ongoing, they are not currently recommended for use, and have not therefore been included in Property PSL standard leases. Click on http://propertypsl.co.uk/node/426

It's not quite property law, but the website carries a link to an excellent article in a US journal on the dos and do nots of communicating by email. It is well worth a read for any lawyer: E-Mail Netiquette for Lawyers by Gerald Lebovits, a judge of the New York City Civil Court.

Also at the same place on the DECC website there is a new 99 page user guide: "The CRC Energy Efficiency Scheme User Guide". This is a guide for clients "written as a practical tool for those people within these organisations who will be responsible for ensuring compliance with the scheme" (e.g. energy managers and financial managers).

According to the DECC website (the Department of Energy and Climate Change) the draft Carbon Reduction Commitment Order was laid in Parliament, yesterday, on 19 January 2010. It does not currently appear on the list of draft statutory instruments on the OPSI website, but it will do so shortly, and a link will be provided from here.

Land Registry has started a "Protect your Property" campaign in an effort to reduce property fraud, and to encourage property owners to keep their addresses for service up-to-date on the register. The Land Registry has published a leaflet - click on: Help protect your property – keep your contact details up to date. There are obvious reasons for keeping your address for service up-to-date. Where a notice is required to be served by the Land Registry on the registered proprietor, it will be served at his/her address(es) for service. For example, if anyone attempts to acquire registered land through an adverse possession claim on Form ADV1 notice of the application is served upon the registered proprietor who then has the opportunity to oppose.

Interestingly, as regards fraud, the following appears in the FAQ section of the Land Registry website:

Q. Why can't you bring back land and charge certificates? These helped to prevent fraud.

A. The fact that someone held a land or charge certificate was not proof that they were the owner on the register. There were instances of fraud even when we had land and charge certificates.

Do you or, more likely, your clients want to know how CRC recycling payments are to be worked out? It is a complicated process, but it is explained at the following link: CRC Recycling Payments.

One case not covered in this month’s CPI Update, but which is attracting considerable interest in the property press, and the practical issues of which will be considered more fully in the February issue of the CPI Update, is the county court case of Hosebay Ltd v Day [2009] PLSCS 318. It is only a county court case, so it does not have the status of a binding precedent. However, the arguments aired in this case can be played out in many other business properties up and down the country, and the considered opinion of HHJ Hazel Marshall QC is worth analysing.

Just before the New Year, the Ministry of Justice announced a proposal to require mortgage lenders to obtain a court order or the consent of the borrower before repossessing and selling residential owner-occupied homes. The proposed changes aim to put current lending practice into law, and ensure that borrowers obtain normal protections offered by the court. The proposals relate to residential owner-occupied properties, and would not affect buy-to-let mortgages or other commercial loans, nor affect other remedies available to mortgage lenders where a borrower defaults on a mortgage. A consultation ends on 28 March. Click on: Mortgages: power of sale and residential property.

The proposal seeks to negate the effects of the case of Horsham Properties Group Ltd v Clark [2008] EWHC 2327 (Ch). This case had caused considerable concern, given its finding that a sale by a mortgagee without its first obtaining a court order for possession, deprived the borrower of the protections of the Administration of Justice Act 1970. Whilst most mortgagees would normally seek an order for possession in order to sell with vacant possession (and the CML states that its members agree to do so in owner-occupied cases), others, particularly those in the buy-to-let sector, may choose not to do so.

According to an announcement on the Ministry of Justice website, the Perpetuities and Accumulations Act 2009 will come fully into force on 6 April 2010 by virtue of a commencement Order announced in Parliament on 7 January 2010.