Roundup December 2022

Here’s a roundup of things that have caught my eye this month.

Conservation Covenants

Conservation covenants, introduced by the Environment Act 2021 and which have been available for use since 30 September 2022, can now be registered as local land charges under rules which came into effect on 29 November 2022.

Conservation covenants are private voluntary legal agreements which bind current and future landowners to positive and restrictive conservation related actions. I first wrote about them in 2013 when the Law Commission launched a consultation. Things have moved on quite a lot since then! There’s more about the new rules here from Herbert Smith Freehills LLP.

Telecoms lease renewals

The County Court has provided clarification on the valuation structure to be adopted when determining the annual rents of renewal leases relating to electronic communications sites under section 34 of the Landlord and Tenant Act 1954 and has set out useful guidance on several other key points that are commonly in dispute. There’s more on this here from DWF.

Tenant Fees Act

There have been very few cases under the Tenant Fees Act 2019 (TFA). However, a recent case before the First Tier Tribunal concerned the lawfulness of agency fees charged by Foxtons at the start of a tenancy agreement for a term of only 8 weeks.

Foxtons used a type of short let agreement, perhaps wrongly assuming that an Assured Shorthold Tenancy cannot be for under 6 months. They thought this meant the TFA did not apply and tried to charge for agency fees to cover various costs incurred in letting the property. The tribunal highlighted that the length of the tenancy does not, in itself, determine the type of agreement, which is most likely to be an AST. There’s more on this here from Boyes Turner.

Disrepair in residential premises – fitness for human habitation

This isn’t just a problem for social landlords. Most private sector tenancies will be subject to the same rules as those in the public sector when it comes to repairs and maintenance issues. Tozers LLP look into this in the context of the recent tragic death of Awaab Ishak.

Landlords should be aware of the Housing Health and Safety Rating System (HHSRS). A detailed regime introduced by the Housing Act 2004 were various potential risks and hazards are assessed and given a ‘hazard score’ by the local authority.

Damp and mould growth are specifically listed as presenting a potential hazard for occupants.

Landlords can also be challenged by tenants directly claiming breaches of the implied tenancy terms contained in the Landlord and Tenant Act 1985, as amended by the Homes (Fitness for Human Habitation) Act 2018. Arguments about the causes of damp and mould, and whether its presence amounts to a breach of s11, feature in many Court cases. ‘Freedom from damp’ is now expressly listed as a factor which could make a home unfit for human habitation.

The obligations of those involved in the construction of dwellings to ensure they are fit for habitation were originally included in the Defective Premises Act 1972. The scope of the obligation has been changed following the introduction of the Building Safety Act 2022.

The duties under the 1972 Act now extend to anyone who is carrying out work to an existing dwelling, so will include refurbishment. This significantly increases the scope of the Act. “Fit for habitation” wasn’t defined in the 1972 Act, but the term has been interpreted by the courts over the years.

A wide group of people can make claims under the 1972 Act: the person for whom the property was provided; subsequent tenants and owners; and anyone who has a legal or equitable interest in the property.

The other big change brought in by the 2022 Act is to increase the limitation period for such claims. This was 6 years under the 1972 Act. It’s now 15 years for claims made in respect of works carried out after the new Act came into force; and 30 years (!) for claims relating to works carried out before the new Act came into force (28 June 2022) (although the 30 years period doesn’t apply to the expanded potential claims relating to refurbishment). More detail is in this explainer from Brodies.

Fire Safety

The government has finally announced its proposals on how developers will contribute to the remediation of unsafe buildings over 11 metres in height under the Building Safety Levy, first announced in February 2021. Here’s an article from Burgess Salmon that has more on the consultation, and so too does Travers Smith.

Registration of Overseas Owners

Time is running out for overseas owners of real estate to register their beneficial owners at Companies House under the Economic Crime (Transparency and Enforcement) Act 2022 and obtain an overseas entity identification (OEID) number and the status of “Registered Overseas Entity”. Failure to do so risks facing serious difficulties in real estate transactions and ultimately criminal sanctions.

The registration deadline is 31 January 2023.

This also applies to any overseas entity that has disposed of all its UK real estate between 28 February 2022 and 31 January 2023.

It applies to freehold or leasehold property where the lease is for 7 years or more.

“Drop-in” Planning Permissions

The Supreme Court has delivered a landmark judgment in a planning case (Hillside Parks) that will have important implications, particularly for large development sites.

A developer or landowner will often obtain an original planning permission on a large site and then pursue changes for part of the site, by lodging a subsequent planning application to “drop-in” alternative development submitted as a fresh, separate application.

The Supreme Court has ruled that generally the implementation of one of these subsequent “drop-in” permissions renders further development under the original permission unlawful, save for certain limited exceptions.

In so ruling, the Supreme Court has reaffirmed the so-called Pilkington principle. There has to be a material departure from the permitted scheme for further development to be rendered unlawful, which is question of fact and degree. Development already carried out in accordance with the original permission is not rendered unlawful merely because further development under the permission is no longer possible.

Freeths discuss the possible implications of this.

The Product Security and Telecommunications Infrastructure Act 2022

This new Act is now partially in force. It’s intended to support the rollout of future-proof, gigabit-capable broadband and 5G networks in a way that balances the interests of landowners, operators and the public, aligns the procedure and framework for renewal agreements with new agreements, to encourage collaborative negotiations and introduce measures that will optimise the use of existing infrastructure. CMS explains this in more detail.