Commercial Property Litigation is a new authoritative handbook for property litigators. It combines an analysis of the relevant substantive law and procedure with practical know-how focusing on common issues and problems faced by the property litigator.
The authors’ explanatory commentary is supported by expertly drafted precedents, checklists, and extracts from key pieces of legislation and procedural rules, which are contained on an accompanying CD-Rom providing easy access to these time-saving precedent materials.
Commercial Property Litigation will ensure that practitioners can be confident of having the relevant knowledge and clear guidance on the practice and procedure on how to deal with these difficult subjects.
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The aim of this book is to provide busy practitioners with a practical and straightforward guide through the principal legal issues affecting commercial property law as well as answers to some of the more common questions and problems which arise in the field where litigation appears to be the next option.It is not intended as an authoritative work, there are a number of these in existence, but as a ready and accessible source of reference to the points and issues which must be taken into account when advising and acting for landlords and tenants and other parties involved in property disputes, or in matters which are likely to turn into disputes. Equally important are the precautions which can be taken to prevent or reduce the risk of litigation. Much of the case-law is fact-specific and commonly will turn on the construction of the material lease; as the ‘factual matrix’ is all-important phrases used in different documents executed by different parties but which appear similar will not always be given the same meaning. Nevertheless a review of the authorities often discloses policy considerations which enable the client to be advised of the consequences of his intended actions and as will be seen, the decisions reached by the courts generally reflect the underlying merits of the parties’ respective positions. For example, the courts will not generally allow a party to escape contractual liability by exploiting the requirements of the Law of Property (Miscellaneous Provisions) Act 1989 where to do so would result in injustice. A landlord who gives active consideration to a request for consent to assignment is unlikely to be found guilty of unreasonable delay even if it takes some time to reach a decision. A tenant who responds promptly to a schedule of dilapidations and appoints a surveyor, and carries out the works so advised, will attract the court’s sympathy where the landlord has been unhelpful, particularly if the repairs are a condition precedent to the successful operation of a break clause. A tenant who complains of breach of landlord’s covenants and withholds service charge would be better advised to pay something on account and enter into dialogue rather than withhold the payment altogether. A tenant who has breached the terms of their lease and is susceptible to forfeiture will be well advised to take steps to remedy the breach or take action to mitigate its effect on the landlord’s reversionary interest. Where such action is taken the court will take some persuading that relief should not be granted.
Mistakes do occur. When things have to be done urgently or under pressure, or the client wants to keep costs down and cut corners, professional advisers are at risk of error. Perhaps the most fruitful source of error and omission is in the service of notice, whether it be a break notice or a statutory notice, and in theneed to comply with time-limits arising from such service. Correction of the mistake is not always possible if the time for service has passed and it is too late to serve a further notice. In these circumstances it is important to bear in mind that mistakes can be overlooked by the recipient, wittingly or unwittingly, or waived by his conduct or representations. Waiver often results from lack of communication between the recipient, whether it be the tenant or the landlord, and his agents and advisers, for example through failure to ensure that everyone is ‘on message’ if the decision is taken to challenge the validity of the notice or its service. The importance of communication can also been seen in the context of forfeiture when a decision is taken to place a ‘stop’ on a tenant’s account so as to preserve a landlord’s right to forfeit.
Failure to comply with the strict requirements of a break clause in a lease, for example giving less than the stipulated period of notice or giving notice to the wrong party, is fatal to the successful operation of the clause. But this is distinguishable from errors in the content of the notice which would not mislead a reasonable recipient with knowledge of the lease. In the case of statutory notices contextual errors and omissions will also be subject to the reasonable recipient test but where the notice fails to comply with the statutory requirements as to contents, where it omits particular items or details which the statute says it must contain, it is a question of what place in the statutory scheme that particular requirement occupies and whether it is essential to the working of the scheme. Ultimately, it is a question of construction of the statute to ascertain what Parliament intended and whether the failure or mistake in question frustrates that intention. In practice, it will often be a question of ascertaining or assessing the degree to which the recipient of the notice is prejudiced by the failure to comply. With this in mind, clients and their advisers should take care to balance the competing benefit of taking a ‘notice point’ against the commercial consequences should litigation on the issue prove unsuccessful.
The matters and issues discussed in this book are not inherently litigious. Serving a break notice, applying for consent to assign, agreeing to vary a deed, adding a guarantor, serving a schedule of dilapidations, are not of themselves the first steps in the process of bringing a claim. Indeed, many of the actions involved are transactional and non-contentious and carried out by practitioners in that domain; although the advice to be given to clients is often based on decided case-law. When things go wrong, however, the dispute which arises is likely to give rise to litigation and the topics contained in this book are those which commonly feature in the reports of property cases. The fact that there are not more of them is due, no doubt, in large part to the emphasis which is now placed by the courts on alternative dispute resolution (and the introduction of pre-action protocols) following the Woolf reforms of 1999 and the consequence that may follow should ADR be ignored. These are considered in the last chapter.
The authors wish to thank their colleagues in the profession for their help in the preparation of this book, particularly those whose articles are mentioned in the text. We have endeavoured to state the law as at 1 October 2011.
James Fieldsend and Paul McAndrews
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