Real Estate Matters – Summer 2019


Court of Appeal indicates TVGs now a less[...]
Walker Morris’ Town and Village Green specialist explains that developers will welcome a recent Court […]
Walker Morris’ Town and Village Green specialist explains that developers will welcome a recent Court of Appeal decision which is likely to result in Town and Village Green (TVG) applications becoming a less effective weapon against development.
TVGs – The story so far
In our previous briefing, we explain in some detail TVG registrations and the legal and practical concerns for landowners and developers. In short, any person may apply to register land as a TVG if a significant number of local inhabitants have indulged, as of right, in lawful sports and pastimes on the land for at least 20 years. Once land has been registered, it is afforded the highest form of protection, which can severely restrict future use and development.
Following concerns, however, that TVG applications were being used to delay or impede otherwise legitimate development, legislation was introduced in 2013 to prevent the registration of land as a TVG where a ‘trigger event’ had occurred. Trigger events are listed at Schedule 1A of the Commons Act 2006 (CA 2006) and the interpretation of one of those formed the basis of the latest TVG case to go to the Court of Appeal. As such, Wiltshire Council v Cooper Estates Strategic Land [1] is likely to have far-reaching implications…
Wiltshire v Cooper Estates
This case concerned a parcel of land (the land) owned by Cooper Estates Strategic Land (the developer) which was situated within Royal Wootton Bassett. The town was one of many settlements which had been identified for significant development in the adopted Core Strategy for Wiltshire. The particular land itself, however, was not specifically earmarked for any development. The key issue in the case was therefore the interpretation of paragraph 4 of Schedule 1A CA 2006, which defines one of the trigger events preventing registration of land as a TVG as where: “A development plan document which identifies the land for potential development is adopted under section 23(2) or (3) of the 2004 Act”.
The Court of Appeal held:
- There must be a sufficient nexus between any development plan and the land in question.
- Identification can be achieved through a variety of planning methods, such as through allocation, preferred areas for development, opportunity areas, reserved areas, and so on.
- It is not necessary for an individual piece of land to be specifically delineated, nor for it to be the only land identified.
- The land in question may well be part of a larger identified area.
- The trigger event is not that the land in question has been identified “for development”, but that it has been identified for “potential development”, which is a much wider concept.
- In fact, “potential” is a very broad concept which, in accordance with the ordinary meaning of the word, is not qualified and is not to be equated with likelihood or probability.
- The phrase that the Court of Appeal was called upon to interpret is imprecise and should therefore be interpreted in accordance with the policy which underpinned its introduction. That policy was that the decision whether or not to protect a piece of recreational land with identified development potential should be made via the planning system and not simply via registration of a TVG.
- It may well be the case that identification of land for potential development under one policy could be contradicted by countervailing policies elsewhere, but a TVG registration authority is not required to consider whether planning permission would be granted.
The Court of Appeal therefore unanimously upheld the quashing of the TVG registration.
Practical implications and advice
The possible implications of this decision are wide indeed. Apart from the fact that the case seems to be a clear indication of the courts’ intention to restore the protection of recreational spaces to the planning system and to Local Green Space policies (and the persuasive value that that entails), there are now likely to be very many sites in respect of which local residents could be discouraged from making a TVG registration application at all, where the land falls within a larger settlement earmarked for potential development in any adopted plan. The barrister who acted for Wiltshire in this case has stated that, for Wiltshire alone, some 80-90% of inhabitants could be excluded from making a TVG application given the extent of land that falls within the Core Strategy.
Going forward, registration authorities are likely to have to undertake very detailed analyses of existing development plans and policies, and to assess TVG applications against those on a case-by-case basis. In addition, planning authorities may need to more carefully consider the implication of existing and future plans on potential TVG registrations within the locality, and to alter or draft plans accordingly.
Developers are likely to be pleased with the direction of travel indicated by the Court of Appeal and they should welcome the fact that TVG applications may become both less prevalent and less likely to succeed following this decision. The case may also result in increasing scope for developers to work more closely with planning authorities in future, so that existing and emerging local plans can be drafted to take account of this wide interpretation of a trigger event.
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[1] [2019] EWCA Civ 840
[2] Source: LexisNexis, 20 May 2019

‘Non-reliance’ clause does not defeat ‘Replies to Enquiries’ liability
Will Cousins explains why a recent Court of Appeal case contains important lessons for all […]
Will Cousins explains why a recent Court of Appeal case contains important lessons for all contracting parties looking to exclude or limit liability for pre-contractual statements/misrepresentation.
Risk of misrepresentations
Prior to any sale/purchase or letting of land, a multitude of enquiries, discussions and negotiations take place before any deal is done. Marketing campaigns for properties/developments, promotional offers and other communications with potential purchasers/tenants have often also been undertaken prior to the contemplation of any particular enquiries or leads. At this pre-contract stage, a myriad of representations are made, many of which could give rise to liability for misrepresentation [1]. There are certain steps, however, that can be taken to exclude or limit liability for misrepresentation.
Potential contractual protections
For example, it is possible to insert a clause into a contract or lease which seeks to exclude or limit liability for misrepresentation. Typically, best-practice is to include a ‘non-reliance’ statement: because reliance on a statement or representation as an inducement to enter into a contract is a necessary component of an actionable misrepresentation, where a party has signed up to a clause which states that it did not rely on any pre-contractual statements or representations, no misrepresentation claim can be made out. The recent case of First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd [2], however, confirms that such non-reliance clauses, if they are to defeat misrepresentation claims, must also pass the requisite ‘reasonableness test’.
Case and context
The case concerned representations made by a landlord in response to a prospective tenant’s pre-contract enquiries. (Although the case arose in a real estate context, it is applicable to all commercial contracts/corporate due diligence.)
The prospective tenant had sought details of any contamination at the premises. The landlord replied that it had not been notified of any problems. When, shortly prior to completion of the lease, the landlord learned that there was asbestos on site, that was not communicated to the tenant. The replies to enquiries contained a provision that, pending completion, the landlord would notify the tenant if/when it became aware of anything that would render any of its replies incorrect. Even if that provision had not existed, the common law provides that representations continue up to completion, such that they need to be corrected if/when things change. There was no dispute, therefore, that there had been a misrepresentation. The question for the Court of Appeal was whether the landlord could rely on its non-reliance clause [3] to avoid liability.
Court of Appeal decision and guidance
To date there has been some uncertainty as to whether or not non-reliance clauses are caught by section 3 of the Misrepresentation Act 1967 (the MA). That section provides that, if a contract includes a term which excludes or limits any liability for misrepresentation, that term will be unenforceable unless it satisfies the ‘reasonableness test’ in section 11 of the Unfair Contract Terms Act 1977 (UCTA) [4].
In this case the Court of Appeal confirmed that, although it is settled law that parties can bind themselves contractually to a state of affairs which they know to be untrue [5], nevertheless statute intervenes to provide an additional requirement in relation to exclusion/limitation of liability clauses. The Court of Appeal held that, quite simply, if liability for misrepresentation would arise if the clause did not exist (as it would in this case), then section 3 MA is engaged and the clause must satisfy the reasonableness test.
The Court of Appeal went on to determine that the landlord’s non-reliance clause was not reasonable. It could not therefore be relied on to defeat the tenant’s misrepresentation claim. The court noted that if the clause was upheld, it would render the landlord’s replies to enquiries worthless. In view of the particular and widely recognised importance of replies to pre-contract enquiries, the court considered that it would be exceptional for such a clause to be found reasonable in that context.
In addition, and importantly, although the Court of Appeal recognised that the courts should generally be wary of finding that terms negotiated between legally represented and sophisticated commercial parties are unreasonable, the fact that the term had been so negotiated here was not sufficient to make it reasonable.
WM comment and practical advice
Whilst the First Tower case is to be welcomed for the clarity it brings to this area of law, it may call into question the reasonableness, and therefore the reliability, of some non-reliance clauses. The case highlights three important practical points:
- Contracting parties should review and take specialist advice upon the terms of their commercial contracts – including the ‘boilerplate’ (which is often where non-reliance, entire agreement and other limitation/exclusion of liability clauses may be found) – to ensure that they are legally reasonable and enforceable in light of relevant factual circumstances;
- In the case of pre-contract enquiries, absent exceptional circumstances, it is unlikely that non-reliance clauses will enable a seller/landlord to escape liability for misrepresentation;
- Regardless of the existence of a non-reliance clause, where a party responds to pre-contract enquiries/due diligence requests, it must do so accurately. It must also ensure that its responses are updated and notified to its counterparty, if/when any changes render the initial response[s] no longer correct prior to completion. (Where sellers/landlords have agents acting, it may be prudent to check with them for any such changes immediately prior to completion.)
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[1] A misrepresentation is an untrue statement of fact or law upon which a party relies in being induced to enter a contract, which thereby causes the relying party to suffer loss. Misrepresentations can be express written or oral statements; they can be implied by words or by conduct; made when making plans or projections for the future; arise via half-truths; or arise where a statement was true when it was made, but later becomes untrue if circumstances change.
[2] [2018] EWCA Civ 1396.
[3] “The tenant acknowledges that this lease has not been entered into in reliance wholly or partly on any statement or representation made by or on behalf of the landlord.”
[4] Section 11 UCTA provides that the term must have been a fair and reasonable one to include having regard to the circumstances which were, or ought reasonably to have been, known or in the contemplation of the parties at the time the contract was made.
[5] that is, they can state in a contract that they did not rely on pre-contractual representations when deciding whether to enter the contract, thereby agreeing to be bound in law/contract by that statement, even if, in fact, they did rely on such representations.

High Court takes practical approach in contracting-out case
Commercial Real Estate Litigation expert Martin McKeague, who specialises in advising landlords and tenants on […]
Commercial Real Estate Litigation expert Martin McKeague, who specialises in advising landlords and tenants on all aspects of portfolio management, explains a recent case which highlights a number of practical considerations arising from the ‘contracting-out’ process.
Security of tenure and ‘contracting out’
The Landlord and Tenant Act 1954 (LTA 1954) affords to tenants who occupy premises for business purposes the right to remain in the premises after the expiry of the contractual lease term; and the right to seek a renewal lease. Since June 2004 landlords and tenants have been able to ‘contract out’ of these provisions, such that security of tenure doesn’t apply, and the tenant’s right to occupy therefore simply comes to an end at the end of the lease term.
Contracting out is achieved by the landlord’s service of a warning notice, followed by the tenant’s making of a statutory declaration acknowledging receipt of the notice and agreeing to give up its rights.
TFS Stores v BMG: Why is this case of interest?
In the recent TFS Stores v BMG [1] case, however, the tenant sought to renege on its contracting out. In a practical High Court decision that will be a relief to landlords, the tenant was given short shrift.
As is explained below, the case demonstrates the importance of ensuring that the correct procedures are followed to ensure that any contracting out is valid and effective.
The decision also highlights that it will be prudent, in many cases, for landlords to serve warning notices on the registered offices of their tenants, as well as on the tenants’ solicitors [2].
As a final legal and practical point, the case also clarifies that it is not necessary to specify a fixed calendar date, so long as the proposed tenancy can be identified.
What were the arguments in the TFS Stores case?
The Fragrance Shop (TFS), a large retail operator with over 200 stores nationwide, argued that six of its leases at a number of McArthur Glen outlet centres were protected by the LTA 1954, despite warning notices having been served, and statutory declarations having been executed, before it entered into the relevant agreements for lease or leases.
TFS’ main arguments were:
- Its solicitors did not have authority to accept service of the warning notices on its behalf. TFS’s solicitor had confirmed by email to the landlord’s solicitor that she could accept service of the warning notice on behalf of her client. TFS argued, however, that it had not authorised its solicitor to accept service and therefore that the warning notice had not been correctly served;
- The individuals who made the declarations on its behalf did not have authority to do so. The employee who made the declarations on TFS’s behalf was the retail director (not a statutory director); and
- The statutory declarations did not identify the commencement date of the contractual term. In two leases, the statutory declarations referred to the term commencing on the “Access Date”; and in the other leases the relevant wording was “for a term commencing on a date to be agreed between the parties” or “for a term commencing on the date on which the tenancy is granted”. TFS argued that no fixed calendar date was given and that this was ambiguous and therefore invalid.
As in interesting aside, the Landlord made a counterclaim against TFS pursuant to a provision which dates back to the eighteenth century, but which is still in effect today and can be an effective tactical tool for landlords. Section 1 of the Landlord and Tenant Act 1730 allows a landlord who has formally demanded possession to claim double the yearly value of the premises from a tenant that “wilfully” remains in occupation following expiry of its lease. The landlord therefore counterclaimed for twice the current rental value for TFS’ ‘holding over’ period.
What did the High Court decide?
His Honour Judge Davis-White QC dismissed TFS’ claim, concluding that the leases had been validly contracted out. The High Court held that:
- TFS’ solicitors did have authority to accept service of the warning notices as a result of their instructions to bring to completion the transaction reflecting the heads of terms, which referred to the leases being contracted out.
- The retail director had responsibility for the negotiation of the leases and therefore had authority to make the statutory declarations on TFS’ behalf.
- A fixed calendar date does not have to be given. The purpose of the requirements of section 38A and Schedules 1 and 2 of the LTA 1954 is simply to identify the tenancy in question and confirm the declarant’s understanding that the tenancy will be excluded from security of tenure protection otherwise afforded.
The landlord’s counterclaim was also dismissed. The High Court decided [3] that to be wilful in this context meant being more than merely deliberate – that is, the tenant had to have an intention to stay on in the premises knowing that it had no right to do so. That was not proven on the evidence in this case.
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[1] TFS Stores Limited v BMG (Ashford) Limited et al [2019] EWHC 1363 (Ch)
[2] See our earlier Walker Morris briefing for traps and tips when it comes to serving legal notices more generally
[3] in accordance with French v Elliott [1960] 1 WLR 40

Failure to spot Japanese Knotweed can be negligent
Surveyors risk being liable in negligence for failing to notice or identify Japanese Knotweed. Steve […]
Surveyors risk being liable in negligence for failing to notice or identify Japanese Knotweed. Steve Nixon reviews a recent case concerning this invasive species which continues to cause issues for landowners and property practitioners.
Why is RYB v Conway Chartered Surveyors important?
As we have reported previously, the presence of Japanese Knotweed, a non-native and highly invasive species, can significantly affect the value, marketability and insurability of land and buildings; it can be incredibly costly and particularly difficult to eradicate; and it will invariably give rise to an actionable nuisance.
In addition, the recent first instance decision in RYB v Conway Chartered Surveyors [1] highlights that surveyors risk being liable in negligence for failing to notice or identify Japanese Knotweed.
What happened in this case?
The claimant had commissioned the defendant surveyors to conduct a building survey at a ground floor flat with a garden in North London. The claimant was proposing to, and subsequently did, buy the property for a price of £1.275 million in October 2014. The surveyor did not take any photographs of the garden, nor did he produce any measurements or plans of the property although he concluded it would be “a worthwhile investment.” Japanese Knotweed was then found in three locations in the garden in July 2015. The claimant commissioned professionals to remove the plant, which took two attempts over two years and caused damage and disturbance to the garden. The claimant brought a claim in negligence against the surveyors for the cost of the remediation works and for the reduction in value of the flat.
The judge found the defendants liable and awarded £50,000 in damages. (The damages included the cost of £10,260 inclusive of VAT spent by the claimant on the remediation works and a sum for diminution in value of the property.)
What are the key points to note?
There are several important points arising from this case:
- Ordinarily in surveyors’ negligence claims, the measure of damages is the difference in value between the price paid and the market value of the property. However, this case suggests that the likely diminution in value arising from Japanese Knotweed is not simply a blanket percentage deduction of the property value. Rather, the judge applied a framework approach which considers certain characteristics of a property to establish the impact the knotweed would have on the market value. These included:
- desirability of the property;
- extent of the infestation and size relative to the size of the garden;
- likely use for the affected land;
- proximity to a built structure;
- and the risk of the plant spreading to neighbouring land.
- The surveyor in this case had not taken photographs and could not therefore support his argument that the knotweed was not clearly visible and obvious to him.
- The case therefore relied heavily on expert evidence (knotweed experts and surveyors) as to what a reasonably competent surveyor would have spotted on the day of inspection.
- There could be an acceptable margin of error depending on:
- the scope of the survey;
- the location and extent of the knotweed; and
- the time of year.
- However, despite an information paper being published by the Royal Institute of Chartered Surveyors (Japanese knotweed and residential property, 1st edition) in July 2012, the defendant could not establish that he had undertaken any relevant training, nor could he provide any evidence in his records that he was competent at identifying knotweed in September 2014.
- Furthermore, given the publicity that knotweed has attracted since the Network Rail Court of Appeal case in 2018 [2], the courts are perhaps unlikely to show much leniency when it comes to the identification of the plant during surveys.
Practical advice
The decision gives rise to some practical advice for both landowners and surveyors.
Landowners
- It is sensible to ensure that, where treatment is undertaken to eradicate knotweed, a record is retained of the presence of the knotweed before it is removed. This ensures that there is evidence in case it is required later down the line. This is especially important given the financial implications.
- Ideally, specialist companies should be used to eradicate knotweed and it may be worth investing in an insurance-backed guarantee for the removal treatment which ensures ongoing treatment cover if the knotweed regrows or the original work is insufficient. The benefit of a knotweed guarantee can also usually be assigned to a purchaser on the sale of a property.
- Potential claimants should check whether any relevant insurance policy (such as home insurance) is sufficient to cover the costs of litigation. Claims can be costly, particularly where expert evidence is likely to be needed.
Surveyors
- Surveyors should ensure that they:
- properly survey and assess for the possibility of Japanese Knotweed when inspecting a property; and
- take photographic evidence and detailed notes to support their inspections/conclusions.
- Surveyors should also undertake regular professional development and training to ensure they are up-to-date on emerging areas relevant to their practice, such as their responsibilities and potential liabilities in respect of Japanese Knotweed. It is also crucial to ensure that a complete and accurate record is maintained to evidence this training and development.
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[1] [2019] Unreported, HHJ Luba QC
[2] Network Rail Infrastructure Limited v Williams and Waistell [2018] EWCA Civ 1514

Costs, conduct and clarity of approach in Code claims
Since its implementation in 2017, the new Electronic Communications Code (the Code) has generally made […]
Since its implementation in 2017, the new Electronic Communications Code (the Code) has generally made it easier for network operators to install and maintain apparatus in, over and under both private and public land. However, whilst reform was required to keep pace with technology, disputes between landowners and network operators are beginning to surface. Two recent Code claims raise key points of which landowners, occupiers and telecoms operators should be aware.
Cornerstone Telecommunications v Central St Giles
In this case [1], the Upper Tribunal (Lands Chamber) (the Tribunal) took the opportunity to reinforce the importance of managing costs and to generally discourage “senseless disputes”.
An operator required access to the roof of a tenanted building which was thought to be a suitable site to host its electronic communications apparatus. Following extensive communications arising from the concerns of the landowner and tenant around the lack of detail provided about the apparatus proposed to be located on the site, an agreement was eventually reached allowing the required access.
The landowner and tenant ultimately complied with the operator’s original request, but spent significant time and money in doing so.
Equally, however, the operator had created uncertainty in refusing to specify any limits on the rights being sought.
Overall, the Tribunal considered that conduct on both sides was unhelpful and entirely disproportionate to the matter in hand. As such, notwithstanding that costs amounted to over £100,000, it awarded only the very much lower sum of £5,000.
EE and Hutchison v Meyrick
In the recent case of EE Ltd and Hutchison 3G UK v Meyrick 1968 Combined Trust of Meyrick Estate Management [2], the Tribunal considered a landowner’s attempt to avoid the imposition of Code rights.
A telecoms operator sought to acquire Code rights in relation to an existing mast site. The landowner sought to rely on paragraph 21(5) of the Code, adducing evidence of a proposed redevelopment to resist the imposition of Code rights. The landowner’s proposed redevelopment involved replacing the operator’s masts with taller masts, to install fixed wireless access broadband. However the operator had confirmed that it would not attach antennae to the new masts and it was common ground that the redevelopment could not reasonably be carried out if the operator had Code rights.
The Tribunal stated: “Just as an important policy of the Landlord and Tenant Act 1954 is to confer a benefit on business tenants in the form of the new tenancy and the continuance of possession, the policy of the Code is to enable Code operators to acquire Code rights and to do so at a price calculated on the basis of assumptions that are favourable to them.”
Noting the similarities between the security of tenure regime under the Landlord and Tenant Act 1954 and the Code, the Tribunal applied the same principles and case law as apply in cases concerning that Act. It found that landowners can resist operators’ Code applications on the basis of paragraph 21(5) only if they can demonstrate both that they have a reasonable prospect of being able to carry out their redevelopment project (an objective test); and that they have a firm, settled and unconditional intention to do so (the subjective test) [3].
Assessing the landowner’s subjective intention, and taking into account matters such as the commercial sense and financial viability of the proposed scheme, the Tribunal concluded that, in reality, the redevelopment plans had been conceived only in order to defeat the claim for Code rights. The landowner was therefore given short shrift and the Tribunal confirmed: “A redevelopment conceived purely to prevent the acquisition of Code rights, which the relevant person would not pursue if Code rights were not sought, will not satisfy the test in paragraph 21(5)” [4].
WM comment and practical advice
These cases demonstrate to operators, landowners and tenants alike that disproportionate costs and sharp conduct will not be tolerated in Code disputes.
Wherever possible, therefore, parties should act in a spirit of cooperation and always consider whether there is the potential to negotiate solutions. Where cases do progress to litigation, parties should manage their costs so that they do not become disproportionate to the matters in dispute, and they should ensure that their conduct is, and is seen to be, beyond reproach.
As with Landlord and Tenant Act 1954 redevelopment disputes, landowners should ensure that they have solid evidence that their redevelopment plans are both objectively feasible and subjectively required.
In any event, the EE case will be welcomed by operators for the emphasis it places on the underlying intentions of the Code. It should also be welcomed more widely for its clarification that established landlord and tenant law will apply and assist in the resolution of Code cases.
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[1] Cornerstone Telecommunications Infrastructure Limited v Central Saint Giles General Partner Limited & Anor [2019] UKUT 183
[2] [2019] UKUT 164 (LC)
[3] The Tribunal employed the two-stage test established by Cunliffe v Goodman [1950] 2 KB 237 and S Franses Ltd v Cavendish Hotel (London) Ltd [2018] UKSC 62. See Walker Morris’ earlier briefing for further information on the Franses case.
[4] Ibid. paras 39 and 40

Short-term ‘Airbnb’ lets: Ongoing issues
Karl Anders, Walker Morris’ Housing Management & Litigation partner, highlights ongoing legal, practical and political […]
Karl Anders, Walker Morris’ Housing Management & Litigation partner, highlights ongoing legal, practical and political issues with the sharing economy and short-term ‘Airbnb’-style lets.
Short-term lets: The story so far
Walker Morris has reported previously on legal and practical issues arising from the ‘Airbnb’-style short-term holiday lets model. We have explained that such lets are often likely to involve breaches of residential lease covenants, mortgage conditions, insurance provisions and planning laws; and that they can give rise to noise and other nuisance for permanent residential occupiers in the locality, as well as repair/maintenance and security issues. Back in June 2018 we noted that we were seeing an increase in complaints and cases of this nature and we offered some practical advice. One year on it seems that the problems arising from the short-term let/sharing economy are proliferating and there is a wider recognition from those who are being affected.
Update: June 2019
Sky News recently reported [1] that, according to the last figures released by Airbnb, some 2 million guests stayed at 64,000 London listings between 1 July 2016 and 1 July 2017 – a staggering 49% increase on the previous year. That does not include short-term lettings via other platforms such as Booking.com and TripAdvisor, so in reality the market is even greater.
Westminster Council has estimated that as many as 1 in 15 housing units in its borough are being let as short-term rentals. That equates to around 8,000 properties in that borough alone, which are consequently not available for long-term residents needing to work and live in the area. Across London as a whole, there is roughly one Airbnb listing (again, not taking into account other providers) per 112 residents; and in Edinburgh, a much smaller city, there is an Airbnb (alone) listing for every 42 residents.
Increasingly, local authorities are noting the very significant strain that these volumes of short-term lets are having on the already-pressured housing market.
In addition to the pressure on numbers, the more lucrative rents that can be charged to short-term holiday or business tenants are resulting in rising rents, which many locals then struggle to afford.
In 2015 the UK Government sought to address this issue by the implementation of a 90-day per year per property limit for this type of rental. However it is becoming clear that this law is proving ineffective – both because it is incredibly difficult to enforce [2] and because it is possible for unscrupulous short-let property management firms and landlords [3] to get around the rules.
The issue is an international one. Many major cities across the world have introduced measures to try to address the ‘Airbnb’-style short-letting boom. As well as housing stock problems, the phenomenon is impacting on traditional hospitality trade and on social cohesion and the sense of community in many localities.
Looking ahead
Whilst the Mayor of London and representatives from cities and councils across the UK have asked the Government to introduce tighter measures to more effectively control the short-term letting market, we understand that the Government has no current plans to pursue any such proposals.
In the EU, the European Court of Justice recently reached a non-binding decision as to the status of Airbnb, finding that the company should be counted as a digital information provider, which therefore has the benefit of the freedom to provide services across the bloc, as laid down by the E-commerce Directive. The likely impact is that businesses like Airbnb will be able to operate, across Europe, largely without having to comply with local planning and housing rules applicable to landlords and property businesses, which are intended to regulate short-term lets. This has prompted 10 cities from across Europe to demand in a joint letter that the issue be addressed by incoming European Commissioners.
Certainly in the immediate term, however, short-term rentals – and the various legal, practical and social problems to which they give rise – are here to stay. Unless and until new national/international action is taken to address the issue, anyone affected should be ready to rely on existing legal redress options, so as to help manage and protect their property portfolios in the current climate.
Please do not hesitate to speak to Karl Anders or any member of our specialist Housing Management & Litigation team for further information or expert advice.
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[1] Rowland Manthorpe, Sky News 30 May 2019
[2] because it is nigh-on impossible for resource-poor local authorities to undertake the levels of surveillance necessary to obtain the evidence needed in support of enforcement action
[3] Guy Lynn, BBC News 25 February 2019: https://www.bbc.co.uk/news/uk-england-london-47305575