Real Estate Matters – Winter 2019/Spring 2020


Landlords beware: Court of Appeal finds CRAR can waive right to forfeit
Walker Morris’ real estate litigation and transactional specialists Martin McKeague and Elle Sugden comment on […]
Walker Morris’ real estate litigation and transactional specialists Martin McKeague and Elle Sugden comment on a recent Court of Appeal case which highlights that taking action to recover rent without an expert understanding or advice can be fraught with risks for landlords.
Why is this case of interest?
In Brar v Thirunavukkrasu [1] the Court of Appeal has held that, by exercising commercial rent arrears recovery (CRAR), a landlord waived its right to forfeit a lease in respect of non-payment of rent.
The ability to forfeit a lease and recover possession is a landlord’s ultimate remedy. However the law of forfeiture is complex and can involve significant traps for the unwary [2]. This case therefore makes essential reading for landlords who wish to preserve and protect the right to forfeit.
What practical advice arises?
- This case highlights the importance for landlords of considering their options carefully – and ideally taking expert advice – before embarking upon any course of enforcement action when rent is overdue.
- Landlords’ transactional solicitors should also aim to protect their clients’ position from the outset, by seeking to incorporate terms within the lease which expressly allow the landlord to forfeit the lease even after the exercise of CRAR.
What happened in the case?
CRAR is statutory regime whereby the landlord is allowed to instruct an enforcement agent to take control of the tenant’s goods and sell them in order to recover an equivalent value to the rent arrears. The landlord must give 7 clear days’ notice to the tenant before sending the agent to the premises.
Forfeiture is the landlord’s right to bring the lease to an end early when a tenant is in breach of its obligations, including non-payment of rent. A landlord can waive a right to forfeit by unequivocally confirming the existence of the lease and communicating this confirmation to the tenant.
In this case, the landlord granted a lease to the tenant of a premises in Teddington, London. The rent was due quarterly on the usual quarter days and the tenant had allegedly failed to pay the December 2015 quarter’s rent. The lease contained a proviso for forfeiture if the rent was unpaid 21 days after becoming due.
On 18 January 2016, the landlord decided to exercise CRAR. On 1 February 2016, enforcement agents went to the property and took control of the tenant’s goods to recover the overdue rent and fees. The landlord then purported to exercise its right to forfeit for non-payment of rent on 12 February 2016, by peaceable re-entry. (That is, the landlord terminated the lease and recovered possession by entering the premises.)
The tenant considered that the forfeiture had ruined its business, so did not apply for relief from forfeiture [3] and instead sought damages. The tenant’s primary argument was that the landlord had made an unequivocal representation that the lease was continuing by exercising CRAR on 1 February 2016, and that the landlord had therefore waived its right to forfeit the lease by peaceable re-entry.
What where the key issues?
At the Court of Appeal, the landlord’s key arguments were:
- That the exercise of CRAR could not amount to an unequivocal representation that the lease was continuing because the scheme makes provision for it to be exercised after the lease has been brought to an end [4]. Therefore, the exercise of CRAR was ambiguous as to the landlord’s intention; or, in the alternative
- That the Landlord had failed to give proper notice and therefore the CRAR was not exercised lawfully and should be a nullity, rather than amounting to a waiver of the right to forfeit.
What did the Court of Appeal decide?
In a unanimous judgment, the Court of Appeal held that, just because in certain circumstances CRAR can be exercised after the end of a lease, that does not mean that the exercise of CRAR is not an unequivocal declaration that the lease is continuing.
Moreover, in the Court of Appeal’s view, where forfeiture was the only way in which the lease could be brought to an end (the lease had many years to run and was not excluded from the security of tenure protection of Landlord and Tenant Act 1954 [5]), CRAR must amount to a waiver. This is because one of the requirements of exercising CRAR after the end of the lease is that the lease did not end by forfeiture.
The Court of Appeal dismissed the landlord’s argument regarding notice, agreeing with the High Court’s earlier view that the tenant “knew that CRAR had been commenced by [the landlord] by the presence of the enforcement agents [at the property]“, notwithstanding the fact that no proper notice had been given.
[1] Brar & Anor v Thirunavukkrasu [2019] EWCA Civ 2032
[2] see our earlier article on the basics of forfeiture, for further information
[3] relief from forfeiture, if granted by the court, effectively resurrects a lease
[4] this is different from the position as it was under the remedy of distress (effectively the predecessor to CRAR), where it was a prerequisite that the lease was continuing before distress could be exercised
[5] see our earlier briefings for advice and information on security of tenure under the Landlord and Tenant Act 1954: https://www.walkermorris.co.uk/publications/retail-matters-spring-2019/supreme-court-confirms-security-of-tenure/; https://www.walkermorris.co.uk/publications/contracted-out-leases-what-are-they-and-what-happens-when-they-end/

Landlord’s works v tenant’s quiet enjoyment: Practical solutions to a perennial problem
Steve Nixon and David Manda, experts in Real Estate transactional work and litigation respectively, offer […]
Steve Nixon and David Manda, experts in Real Estate transactional work and litigation respectively, offer practical advice following a recent case concerning the tension that so often arises when a landlord’s repair or development works entail disruption for its tenant.
Why is this case of interest?
The recent appeal case of Jafari v Tareem Ltd [1] affirms the approach the courts will take in trying to strike a balance between a tenant’s right to quiet enjoyment under a lease, and the landlord’s right to repair or develop its property.
On the one hand, the ability to carry out works is a fundamental proprietorial right and is crucial for landlords who want to properly maintain or realise the value of their property. On the other hand, it is an essential tenet of the landlord and tenant relationship that the tenant be able to enjoy its leasehold interest.
This case demonstrates that collaboration between the parties can help to avoid disputes arising; and that, where litigation is required, evidence of the landlord’s conduct and of the true consequences for the tenant will be key.
What practical advice arises?
Landlords:
- If you wish to develop your property, you need not do everything that is possible, but you must do everything that is reasonable, to minimise disturbance to the tenant.
- A collaborative approach with the tenant will aid the process, pre-emptively mitigate any potential claims, and can even minimise the chance of a dispute arising at all.
- Issues to consider in advance with the tenant can include: reviewing the overall plans, deciding access routes for the works, the positioning of scaffolding, minimising disruption to the appearance of the premises, minimising noise pollution, offering financial compensation, and so on.
- If you are not in the financial position to offer the payment of compensation, or if you are depending on the rental income to fund the development, restricting the hours in which the works are conducted will minimise disruption and avoid the tenant suffering noise during their hours of operation. This can be essential if the tenant is operating a business from the premises.
- Jafari v Tareem confirms that any offer of financial compensation can be taken into account. It can to help to establish the overall reasonableness of the landlord’s approach; is an effective mechanism in appeasing the tenant and preserving relationships; and can mitigate against any potential damages award.
- However, the adequacy of any financial compensation will depend on the facts of the case and should be carefully assessed. For example, in this case the tenant was not able to prove that the works had directly caused a financial downturn in the business in the relevant period, nor was it able to sufficiently prove that the works caused intolerable noise outside of the restricted hours. This allowed the judge to look favourably upon the rent waiver proffered by the landlord as “both substantial and generous”. Simply offering a nominal amount of financial compensation as a box-ticking exercise is unlikely to suffice.
Tenants:
- Whilst disruption to your business and/or your overall enjoyment of your property by virtue of landlord’s works is no doubt frustrating, it can be an inevitability.
- In order to avoid the time, cost and risk inherent in any litigation, engaging with the landlord and helping to shape its plans and its development operations can be the most effective way of protecting your position and minimising disturbance and damage suffered.
- In case issues do arise, however, tenants are best advised to keep a methodical and thorough record of the works, the landlord’s/contractors’ approach and any instances of disruption to quiet enjoyment, including – crucially – any direct impact, loss or damage suffered as a result. Causation is an essential element of any successful claim, and must be proved with evidence.
What happened in the particular case?
The tenant, Dr Jafari, operated a dental practice within the north block of a building. The landlord, Tareem Limited, owned the building and elected to convert the rest of the property into a 134-bedroom hotel. Given that this would be a substantial project that would inevitably impact the tenant to some degree, the landlord waived the rent for the period of the works.
Despite this, the tenant alleged that the works caused a significant amount of noise, and the scaffolding erected around the exterior of the property obscured the entrance to his premises making it look closed. He claimed to have a suffered a significant financial downturn in the profitability of the business as a result, and stopped paying rent altogether. The landlord brought a claim for arrears, and the tenant counterclaimed for breach of the quiet enjoyment covenant.
The questions for the court at first instance where whether the landlord had taken all reasonable steps to minimise disturbance, and whether the court should take into consideration the rent waiver.
The court acknowledged that more could have been done to minimise the impact to the tenant, but found that the landlord did take all reasonable steps, including offering financial compensation. The tenant appealed to the High Court.
What did the appeal court decide?
The tenant argued on appeal that the judge at first instance showed a lack of consistency by acknowledging the failure of the landlord to take all possible steps (including the landlord’s failure to act only within restricted hours), and that the court should not have factored in the rent waiver.
The High Court disagreed: the decision could only be overturned if there was a clear gap in logic, or a failure to take into account a material factor. Although the first instance judge had acknowledged that the landlord could have done more to minimise the disturbance, the landlord had “principally” worked within the restricted hours, and they had more than recompensed for this with the amount of rent waiver. Even if the judge was wrong to account for the rent waiver in this way, he would have concluded that the rent waiver objectively acted as generous compensation, and would therefore have mitigated against any further damages being awarded.
The tenant also failed to produce clear evidence that any significant financial loss was caused as a result of the landlord’s works – there were, on the facts, other possible causes for the tenant’s financial loss, and that was fatal to the tenant’s claim.
The appeal failed on all grounds.
WM Comment
Collaboration is inevitably the best course – not only for avoiding disputes in the short term, but also for preserving the ongoing landlord and tenant relationship. However, if collaboration attempts prove unsuccessful, it may be sensible to seek expert advice on how to handle the competing rights of the parties and what legal recourse might be available to you.
Please do not hesitate to contact Steve, David or any member of the Real Estate or Real Estate Litigation teams if you would like any further advice or assistance.
[1] [2019] EWHC 3119 (Ch)

Persistent problems with trespassers: What can landowners do?
Trespass can be a recurring nightmare for landowners. Walker Morris partners Karl Anders and Martin […]
Trespass can be a recurring nightmare for landowners. Walker Morris partners Karl Anders and Martin McKeague explain how recent case law can offer an effective option for landowners where earlier enforcement action has failed to secure permanent eviction.
What is the issue?
Many landowners have experienced the nuisance, damage to property and expense of dealing with trespassers. Whether it be travellers setting up encampments or protestors blockading sites or disrupting trading, trespass can cause direct, financial loss for landowners, reputational damage, and it can often have wider social impact for the general public or lawful occupiers who may get caught in the cross-fire.
Dealing quickly and effectively with trespassers can therefore be of vital importance. This is not always straightforward where the identity of any trespassers is unknown (so that they can’t be named in legal proceedings); and/or where, following an eviction, trespassers simply return or relocate to another of the landowner’s sites, very shortly afterwards.
What is the solution?
Fortunately for landowners, all indications from the flurry of recent case law in this area are that the courts will adopt a sensible and pragmatic approach and may be willing to order an injunction to remedy the situation.
An injunction has real “teeth” because it contains a penal notice. That means that if an affected person breaches the injunction, he or she is in contempt of court and can be imprisoned. Furthermore, in the case of local authority landowners, the Anti-Social Behaviour Police and Crime Act 2014 affords the court the ability to attach a direct power of arrest to the injunction, meaning that applying to the Court for a contempt of court order can be avoided before an offender is taken into custody.
The courts do not however grant injunctions without first undertaking a thorough assessment as to whether they are an appropriate remedy. Landowners and their advisers should therefore note all of the following legal and practical lessons to come out of recent trespass case law.
Key lessons from recent trespass case law
Boyd v Ineos Upstream Ltd [2019] EWCA Civ 151
- There must be a sufficiently real and imminent risk of a wrong being committed to justify quia timet (that is, anticipatory/pre-emptive) injunctive relief.
- For an injunction to be granted against “persons unknown”, it must be impossible for the claimant to name the person[s] likely to commit the wrong; and it must be possible to give effective notice of the injunction.
- The terms of the injunction must correspond to the threatened wrong; they must not be so wide as to prohibit lawful conduct; and they must be clear and precise.
- The injunction should have clear geographical and temporal limits.
Norfolk County Council v Johnstone & Ors [2020] 1 WLUK 36
- Where other forms of enforcement action against trespass [1] have failed and the harm caused is not compensable in damages, an injunction can be awarded.
- The Boyd v Ineos principles apply on the granting of interim injunctions as well as final injunctions.
- So far as the temporal limit of an interim injunction is concerned, that will be a question of fact in each case. An injunction made for too long-a time could be subject to an application to vary. (In the Johnstone case, a three month interim injunction was ordered on the basis that it would give the claimant and the court the opportunity to assess whether injunctive relief was proving successful, and it would give both parties time to prepare for the final injunction hearing [2].)
Canada Goose UK Retail v Persons Unknown [2019] EWHC 2459 (QB)
- Amid the pressure and the practicalities of injunction litigation, parties must not underestimate the importance of getting the legalities and the procedural aspects absolutely right [3].
Cuadrilla Bowland Ltd v Persons Unknown [2020] All ER (D) 105
- So far as the Boyd v Ineos requirement for clarity and precision is concerned, this is particularly important where an injunction is targeted at persons unknown or at those who do not have legal representation.
- If there is any reasonable doubt as to whether a person’s conduct is covered by the injunction, the injunction may be unenforceable and may not be relied upon to establish a finding of contempt of court/imprisonment in the event of breach.
- An injunction term may fail the ‘clear and precise’ test if it is ambiguous, vague or drafted in such opaque, convoluted or technical language that it is not easily understood by its intended recipient.
- Context will also be key to determining the clarity and precision of an injunction term (“words which are clear enough in one factual situation may be unclear in another”).
Bromley v Persons Unknown [2020] EWCA Civ 12
- This case is particularly relevant for local authority landowners dealing with the traveller community.
- The court, when dealing with a local authority’s application for an injunction against travellers, is primarily obliged to assess the proportionality [4] of the injunction in the terms sought.
- Local authorities should carefully consider the temporal and geographical range of any proposed injunction, and should ensure that alternative sites and other solutions have been explored.
- Local authorities should engage with the traveller community in a meaningful way, including (where appropriate) conducting welfare and equalities assessments.
- Whilst all cases have to be considered on their own merits, it would be wrong for a court to ignore the fact of a neighbouring authority’s successful injunction – if every local authority obtained an injunction, the travelling community would literally have nowhere to go. The cumulative effect of injunctions is therefore a relevant factor for the court to take into account as part of its proportionality assessment.
WM Comment
If you would like any further advice or assistance in dealing with trespassers, please do not hesitate to contact Karl or Martin, who will be very happy to help.
[1] such as orders for possession or local authority notices under sections 77 and 78 of the Criminal Justice and Public Order Act 1994, for example
[2] The question of the temporal limit of the injunctions granted in Boyd v Ineos was not addressed in the Court of Appeal’s judgment; and it remains to be seen what temporal limit will ultimately be granted in the Johnstone case. Further guidance from the courts on temporal limits is likely to be ‘one to watch’.
[3] See our earlier briefing for further information and advice
[4] In the well-known case of Manchester City Council v Pinnock [2011] 2 AC 186 the Supreme Court ruled that a person at risk of dispossession of his or her home is entitled to challenge the proportionality of an eviction by a public authority under Article 8 of the European Convention on Human Rights

Modifying covenants: Unlocking value in leasehold land
Will Cousins and David Manda explain a recent case which reminds tenants that a landlord’s […]
Will Cousins and David Manda explain a recent case which reminds tenants that a landlord’s refusal to modify or discharge a covenant which restricts development or limits the value of leasehold land may not be the end of the line. Will and David offer practical advice for unlocking potential in a leasehold portfolio.
Why is this case of interest?
It is well known within the real estate/development industry that the Upper Tribunal (UT) has jurisdiction to modify or discharge restrictive covenants affecting freehold land in accordance with section 84 of the Law of Property Act 1925 (LPA 1925). It is, perhaps, less widely known that this jurisdiction can also extend, in certain circumstances, to leasehold covenants by virtue of section 84 (12) LPA 1925. Section 84 (12) can provide the owner of a long leasehold interest with a mechanism to override restrictions on use, and thereby unlock additional value in its portfolio.
Restrictive covenants can prevent leasehold land being used for a particular purpose. Such restrictions may restrict the type or even density of development that can take place. Often the restrictions will be historic, yet their existence can have a significant impact upon the marketability and value of land.
Any party wanting to vary or relax such covenants will either need to come to an agreement with the beneficiary (which might involve the payment of a substantial premium), or ask the UT to exercise its jurisdiction to discharge or modify restrictive covenants.
The lease must be for a term of over 40 years with at least 25 years expired; and the leaseholder must be able to show that one of the grounds in section 84 applies, namely:
- the covenant is obsolete;
- it impedes some reasonable use of the land;
- the beneficiaries expressly or impliedly agreed to the release or modification; and/or
- no injury will be caused.
The recent Berkeley Square case [1] is a worked example of the UT’s approach to section 84 applications.
What are the practical implications?
This case is a clear reminder that, where a landlord will not agree to modify a covenant, a tenant may be able to make an application for modification which, if successful, could save any development plans or otherwise unlock value in leasehold land.
In such applications, evidence will be key. The UT will consider all relevant circumstances and will make a decision on the particular facts.
If planning consent has been obtained for a proposed development and/or where it can be shown that the covenant in question does not secure practical benefits of substantial value or advantage to the landlord/beneficiary, a tenant/applicant is likely to succeed.
Similarly, however, it is important when considering a section 84 modification application, to take into account the nature of the landlord’s objections and their legitimacy. If the landlord owns any neighbouring property or if the restrictions form part of a wider leasehold scheme, for example, it may well be reasonable for a landlord to rely on the covenant to exert control and to restrict uses that it may deem undesirable or in conflict with its own interests.
Importantly, though, the ability merely to extract financial gain from the enforcement of a leasehold covenant should not provide the landlord with a good reason to oppose the application. A landlord refusing to agree a modification requested by a tenant should always ensure they are able to justify, with evidence and in light of the section 84 (12) grounds, why the covenant is required.
It is worth noting that the UT’s power to modify or discharge a restriction is discretionary and that an application may be granted in cases where only one (or more) ground is satisfied.
What happened in the Berkeley Square case?
The tenant held a long lease of 45 Berkeley Square (the Premises). The freehold was held by the landlord, who was also the freeholder of the adjoining premises which included Annabel’s, a private members’ club located at 46 Berkeley Square. The lease, which was due to expire in 2070, contained a covenant which restricted the use of the Premises to offices with ancillary residential accommodation on the fourth floor.
The tenant sought to implement a planning consent it had obtained to change the use of the Premises to a private members’ club. However, the landlord would not agree. The landlord argued that modifying the covenant to allow implementation of the tenant’s planning consent would be detrimental to its estate management, and that opening another private members’ club would have a negative impact on Annabel’s.
The tenant applied to the UT for modification of the covenant under the following grounds:
- There was no demand for office properties of that size and kind (grade I listed), hence the covenant was obsolete. (This argument was rejected by the UT, however, because demand was limited rather than non-existent, therefore the covenant was not actually obsolete.)
- There were multiple private members’ clubs in the area and the tenant had already been granted planning consent. The covenant therefore impeded reasonable user. The UT accepted this argument.
- Modifying the covenant would cause no injury to the landlord. On the evidence, it was unlikely that another members’ club would diminish the value of the landlord’s reversion (in fact its value may even be increased), and use of the Premises as an office conferred no practical benefit on the landlord. The UR agreed and accepted this ground.
The UT therefore decided that the tenant’s request for modification would succeed.
WM Comment
If you would like any advice or assistance in connection with the enforcement, modification or discharge of any restrictive covenants – whether that be in relation to freehold or leasehold land; and whether it be in relation to commercial negotiations or legal recourse via an UT application – please do not hesitate to contact Will, David or any of our Real Estate transactional or dispute resolution specialists.
[1] Berkeley Square Investments Ltd v Berkeley Square Holdings Ltd [2019] UKUT 0384 (LC)

Combustible cladding ban for Welsh high-rise residential buildings
Following the Grenfell Tower fire in June 2017, policies related to cladding materials and building […]
Following the Grenfell Tower fire in June 2017, policies related to cladding materials and building regulations for high-rise residential buildings have been the focus of some scrutiny. Dame Judith Hackitt’s independent Review of Building Regulations and Fire Safety published in 2018 provided a number of recommendations for significant changes relating to high-rise residential buildings and combustible cladding materials, some of which some have already been implemented across the property sector.
Reflecting similar measures introduced in England in December 2018, the new Building (Amendment) (Wales) Regulations 2019 (WSI 2019/1499) (the Regulations) will apply from 13 January 2020 to effectively ban the use of combustible cladding on high-rise buildings within Wales.
The Regulations will apply to all new residential buildings, including: flats, student accommodation, care homes and hospitals which are over 18 metres in height. The ban covers the entire height of the building, and will apply to the complete wall assembly and certain attachments of the external wall, including balconies and solar panels.
The ban will also apply to existing buildings where relevant building falls within the scope of the regulations, unless the building works have started on-site before, or an initial notice, building notice or full plans have been submitted and work has started on site within a period of 8 weeks of, the in-force date (13 January 2020).
The Welsh Government has indicated its intention to publish a White Paper in 2020 to give greater clarity on the long-term responsibilities of those who design, construct and manage buildings. Walker Morris will monitor and report on key developments.

Boundary disputes: Problems and practical solutions
Real Estate litigator Lewis Couth looks at issues commonly faced in commercial and residential boundary […]
Real Estate litigator Lewis Couth looks at issues commonly faced in commercial and residential boundary disputes and considers some possible practical solutions.
What are the issues?
Boundary disputes can be some of the most heated and emotionally/financially-fuelled matters dealt with by the courts. They can go on for long periods of time and often end in a complete breakdown in neighbourly relations. Whilst boundary disputes are more commonly associated with residential properties, they often arise between commercial properties too.
Boundary disputes can be of particular concern to developers – especially when developing land that is neighboured by pre-existing residential properties. When building a housing development, for example, a developer will want to maximise the area of its individual plots to achieve the highest potential sale price. However if neighbours have already extended beyond their boundaries, this can eat into profits.
A key issue with boundary disputes is their complexity. A boundary is, like the equator, an imaginary line and therefore determining its exact location is no easy task. While fences, walls and other such physical lines are usually taken to be the boundaries of a property, these can be in the wrong location – as such, they are themselves often at the centre of a boundary dispute.
Owners of land will often turn to their title plans and ‘scale-up’. However, while title plans are a natural starting point in establishing a boundary and can be good evidence in a dispute, even they do not provide a definitive (or legally binding) answer; with the great majority of registered titles only showing ‘general boundaries’.
Boundaries are determined by examining the conveyances of the land in question and of adjoining land. The law provides that conveyances are to be interpreted from the perspective of a reasonable person in light of the objective surrounding facts and that means that, ultimately, it is only the courts who has the power to determine exactly where a boundary lies. In doing so, the courts attempt to objectively establish the boundary objectively as at the date of the earliest conveyance. Crucially, they do not take into account the subjective beliefs of the parties to the dispute. To complicate matters even further, even where a boundary has been determined, factors such as adverse possession can mean that it has moved over time.
All of this means that neighbours have frequently been known to incur tens of thousands of pounds in court and legal costs in matters concerning very small strips of land. The cost of litigation can therefore be far disproportionate to the value of the land itself, and the outcome of a case can be devastating to the losing party and to neighbourly relations.
What practical solutions might arise?
Alternative dispute resolution (ADR) can be a much cheaper option for parties. The Boundary Disputes Protocol, published by senior members of the legal and surveying professions in 2017, sought to set out a framework that incorporated ADR, promoting the use of joint surveyors and a more cooperative approach between parties. While the protocol provides guidance on the most cost and time efficient manner in which to settle a dispute, it is not mandatory. In addition, it has come in for some criticism because some of the language and terminology within it is complex, meaning that it is not user friendly to a person who is not a property professional; and because a person who is not a property professional may not be aware of the protocol at an early-enough stage of a dispute, meaning that positions may have become entrenched, rendering ADR impossible in any event. Of itself, therefore, the protocol does not necessarily represent a workable, practical solution for parties.
Parliament has, however, recognised the need for legal reform in this area. In 2015 it introduced the Property Boundaries (Resolution of Disputes) Bill and, whilst the bill has been slow to make its way through Parliament (with Brexit dominating legislative manpower in the meantime), the bill had its first reading on 15 January 2020 and is awaiting a date for its second.
The bill seeks to introduce mandatory expert (surveyor) determination of boundary disputes and will only enable a claimant in a boundary dispute that ends up in court to claim its costs where it has first followed the procedure set out in the bill.
While the bill will make it mandatory for parties to attempt to determine their dispute out of court, it has also come under criticism. Firstly, the bill only extends to owners of freehold land meaning that owners of leasehold properties would require the freeholder to engage the boundary resolution procedure on their behalf. This could be an issue for leaseholders – particularly in the case of long-term commercial leaseholds, where the freehold owner may be hard to trace or may have no inclination to become involved. Another concern is whether the determination by the surveyor will conclude the dispute; the boundary dispute may involve complex issues of law or may involve issues about encroaching structures and/or the award of damages. This means that litigation may ultimately have to ensue in any event.
Whilst the bill is a step in the right direction, therefore, it will need some refinement. If passed in its current or an amended form, the bill will change the way in which boundary disputes are handled and will be of significance to all landowners, occupiers and developers. Walker Morris will monitor and report on key developments.