ABG Property Newsletter – February 2013

Permitted development rights to be extended

The Government has announced 4 changes to the permitted development rules which are intended to make it easier to bring previously developed land back into use. The changes are expected to come into force during the spring and include the following:-

  • Allowing a change of use from class B1(a) offices to class C3 residential without the need for planning permission. However, any associated physical development that would have previously required planning permission will still require permission.
  • Allowing agricultural buildings to be used for other purposes, but not for residential use. There will be a limit on the size of buildings that can be converted.
  • Increasing the size of properties that can change use between business/office (B1) and warehouse (B8) and between general industry (B2) and business/office and warehouse. The current size limit of 235 m2 will be increased to 500 m2.
  • Allowing certain town centre properties to convert to other uses for a temporary period of up to 2 years. The uses that can convert to new uses include shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1). The Government hopes that these changes will bring vacant high street properties back into use.

Acquisition of a right of way by continuous use

One of the ways in which a right of way can be established is through long use “as of right”. Twenty years use will normally be sufficient for this purpose.

In a recent case the Court ruled that a property had acquired the benefit of a vehicular right of way over a track through continuity of use as of right. There was a track which ran from the claimants’ property over a neighbour’s property to meet a public highway. The claimants did not drive over the track on a daily basis and the evidence was that the track was used relatively infrequently, only a few times a month. Also it was tricky to drive down the track, but although the claimants did not have a four-wheel drive car, it was still possible to drive an ordinary car down the track.

Despite the infrequent use the Judge concluded that the claimants had acquired a right of way over the track through their having driven along it over a substantial period of time and there was no requirement for them to be driving up and down the track each week or even each month.

Termination of tenancy by one joint tenant

In a recent test case the Court of Appeal has confirmed the longstanding rule that where a tenancy is held by joint tenants, one of them can terminate the tenancy by serving a notice to quit on the landlord. This applies even if the other joint tenant did not know of or consent to the service of a notice of termination.

In this case a husband and wife held a secure tenancy in a property owned by the local council. Following the breakdown of the marriage the wife terminated the tenancy by serving notice to quit on the council.

The council refused to allow the husband to remain in the property as sole tenant and brought possession proceedings. The husband challenged the council’s claim relying on the European Convention on Human Rights, claiming that the action was in breach of his right to respect for his home and family life and his right to peaceful enjoyment of his possessions.

However, his defence was rejected by the Court of Appeal which confirmed that previous case law continued to apply and that it was possible for a joint tenant to end a joint tenancy unilaterally.

Tenancy deposit schemes and prescribed information

The Court of Appeal has ruled that a landlord must give a tenant all information prescribed by a tenancy deposit scheme and it is not enough that the information is freely and easily available.

The deposit paid by the tenant had been put in a tenancy deposit scheme. When the tenant fell into arrears, the landlord brought possession proceedings. The tenant claimed that the landlord had not complied with all the requirements of the prescribed information order relating to tenancy deposits.

The tenancy agreement dealt with the return of the deposit and the landlord claimed that he had complied with the requirement to advise the tenant of the procedures for repayment of the deposit at the end of the tenancy and the procedures where the landlord or tenant cannot be contacted. He admitted that he had failed to provide the tenant with details of the procedures which applied when the amount to be repaid was disputed and the facilities for resolving a dispute without litigation. However, the landlord argued that this information was readily available on the TDS website and that the tenant’s deposit was therefore protected.

However, the Court found that this was not sufficient as, although the tenancy agreement addressed the return of the deposit, it did not mention the relevant procedures under the tenancy deposit scheme. The landlord had been required to provide information about the dispute resolution aspects of the TDS. In these circumstances the landlord was required to repay the tenant’s deposit (of £950) plus a further sum equivalent to 3 times the amount of the deposit (£2,850).
The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Siobhan Goodacre
+44 (0)115 934 3325

Wendy Shaw
+44 (0)115 934 3303