Property litigation weekly update – 17 June 2022


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This week we provide an update on the long-awaited proposals for reform of the private rented sector. We also cover a case that highlights that registered providers' housing transfer decisions can be subject to judicial review and a case regarding the modification of a restrictive covenant. All of this, together with our usual dose of positive news and insights from around the firm.

Reform of the private rented sector – white paper

The Government has published its fairer private rented sector white paper with the aim of ending "no fault" section 21 evictions and moving all tenants onto a single system of periodic tenancies, curbing arbitrary rent reviews, preventing landlords from blocking families with children or benefits recipients from their properties and making it easier for tenants to keep pets.

The Government also proposes to double the notice period for rent increases and to create a registration scheme for landlords and an ombudsman to settle disputes. Under the new proposals landlords could also be forced to refund rent if they do not keep homes in an acceptable condition.

Described by Department for Levelling Up, Housing and Communities as the biggest shake up of the private rented sector in 30 years, the proposals set out in the white paper are part of a wider reform agenda to deliver more housing and greater protection for tenants and are set to become law as part and parcel of a new Renters Reform Bill as announced in the Queen's Speech in May.

TRX v Network Homes [2022] – judicial review of housing transfer decision

This case concerned a tenant's application for judicial review of Network Homes' decision to refuse her application for a management transfer to alternative accommodation under its Allocations and Lettings Policy.

The claimant tenant, who was not named in the proceedings, wanted to move herself and her three children away from her abusive ex-partner and to a different property. Her ex-partner was not living with the family but did know their home address. Network Homes advised the tenant that they did not have any vacant properties at that time, and that she should instead register as homeless with a local authority.

The tenant had provided evidence of the abuse she had suffered but Network said it was unable to increase the family's priority banding and that any request for a move could only be granted in 'exceptional circumstances'. Network's decision was that this threshold was not met, “as [the tenant] was unable to provide any evidence of threats to life or limb” and “threats were not severe or immediate”.

The High Court did not rule that the Network Homes' policy was unlawful or discriminatory as the policy did not require tenants to end their tenancy before applying to a local authority to be rehoused, nor did it include a blanket requirement for the abused to report their abuser to the police.

However, the Court did conclude that Network Homes had not provided ''proper and substantive rationale'' in the decision given to the tenant. It quashed the decision on that basis and ordered that the matter be remitted for consideration afresh by Network Homes.

The Court also confirmed that decisions made concerning the management of transfers made by registered providers can be subject to judicial review, as Network was 'exercising a public function' when making the decision on whether to prioritise a transfer for the family.

Dickinson v Adams and another [2022] – freehold restrictive covenant modified to enable construction of two dwellings

A recent case in the Upper Tribunal (Lands Chamber) concerning an application to modify a restrictive covenant under section 84 of the Law of Property Act 1925 is a useful reminder to compare what is being proposed under the modification with what could realistically be done without it.

The applicant, Mr Dickinson, owned a bungalow that was subject to a restrictive covenant preventing more than one private detached dwelling house from being built on the land. Mr Dickinson obtained planning permission to sub-divide the plot and build two new houses.

He then made an application to the Upper Tribunal (Lands Chamber) pursuant to section 84 of the Law of Property Act 1925 to modify the restrictive covenant to allow construction of the two new houses to go ahead on the basis that:

  • The covenant was impeding a reasonable use of the land and it secured no practical benefits of substantial value or advantage to those with the benefit,
  • Modification of the restriction would not injure the persons entitled to the benefit of it.

Mr and Mrs Adams, whose property shared an accessway with the Walk, objected to the application. They argued the restriction was intended to preserve the character of an attractive neighbourhood and that it was of particular benefit to them in preventing a dominating new house, wear and tear on the access area, parking problems and the risk of further applications for density restrictions to be lifted on other plots subject to the covenant.

Mr Dickinson successfully argued that what he was proposing would be an improvement to the street scene but if the covenant was not modified, he would implement an alternative 2017 planning consent for a larger single house instead, which would result in a more imposing house. The Tribunal did not consider that parking problems or damage to the access track would be any worse for the construction of two dwellings than it would be for one if the 2017 consent was implemented and Mr Dickinson had in any event offered a security deposit for repairs.

The Tribunal also considered the age of the covenant, which was imposed 65 years ago when the planning policy for the area would have been very different. It noted that councils are now required to deliver a sufficient supply of homes and that infill development represents an important source of new small-scale housing supply in the district.

The Tribunal was satisfied that the restriction did impede a reasonable use of the land and that no injury would be caused and modified the covenant to allow construction of the two dwellings to go ahead.

Insights from around the firm

Positive news

  • UK children to be given medication to treat patients with peanut allergies: A hospital in Norfolk has become the first in the UK to administer a new peanut allergy desensitisation drug to children with the aim of reducing their sensitivity and reactions to peanut proteins over time.
  • Research shows that a 'superworm' with an appetite for polystyrene may provide an alternative method of breaking down the plastic waste: Australian scientists have found that the larvae of a species of beetle more commonly known as the superworm contain several enzymes that are capable of breaking down and digesting polystyrene. The superworms were given polystyrene foam to eat over a three-week period and it was found that they were still able complete their life cycle. Polystrene is notoriously difficult to recycle, and it is hoped that superworms could play a key role in the process of upcycling plastic waste in the future.

 

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