We are delighted to announce that we have been awarded Conveyancing Quality Scheme (CQS) Accreditation by the Law Society; the quality mark for residential property lawyers.

The firm’s property department underwent rigorous assessment by the Law Society to secure CQS status. The scheme improves efficiency with standards and service levels and allows consumers to recognise law practices that provide a quality residential conveyancing service.

This is a proud moment for the property team and the firm as a whole. It is recognition of the high levels of service our team provides and, of our commitment to ensure that the highest standards of training and customer care are met.

With so many residential conveyancing providers in the United Kingdom, it is worth noting that not all practices meet the Law Society’s required standards. Therefore, we would recommend that, if you are buying or selling a property, you check that your chosen legal practice is CQS accredited.

If you are a first time buyer and are wanting to take advantage of the stamp duty holiday you need to get moving as time is running out. If you are looking to buy a home, you should make your solicitor and the property seller aware from the outset that you want to complete by 24th March 2012.

You can also download our free Buying a Home Guide to help you out.

Just as the surname of one of his famous characters has become a common byword in the English language, so too has his own. The term ‘Dickensian’ conjures up images of sub-standard living and working conditions. Therefore, is it surprising to know that Charles Dickens, throughout his life, defended and championed the poor and down-trodden and highlighted the poor housing conditions of Victorian London?

Dickens wrote of “wretched houses with broken windows patched with rags and paper…filth everywhere – a gutter before the houses and a drain behind” (Sketches by Boz, 1836) and told tales of the orphan begging for more (Oliver Twist, 1838). But, beyond the social commentary offered by his works of fiction which highlighted the life of the forgotten poor and disadvantaged within society, Dickens was a fierce critic of the poverty and social stratification of Victorian society. He campaigned on issues such as sanitation and the conditions of workhouses.

In the magazine which Dickens edited for 9 years in the 1850s, “Household Works” he criticised the authorities about the conditions which working people had to endure and slum landlords were condemned. Actions which have been repeated over the past century and a half by other campaigners for housing reform – even recently in Channel 4’s “Dispatches: Landlord’s From Hell”presented by Jon Snow.

Many historians share the view that Dickens did not influence social reform as much as he is widely assumed to have done, but I do not think many can argue that Mr Dickens was a philanthropist who was passionate about housing and sanitary reform and whose social commentary opened the eyes of the middle and upper classes and give a voice to the impoverished and dispossessed.

Cathy McFadden, Associate

Whether you make a ‘full plans application’ or submit a ‘building notice’, once the building work is in progress the local authority building control service will inspect the work (regularly or periodically, respectively) and will advise if the building works do not comply with the Building Regulations.

But, what if the local authority building control service fails to spot a defect?

In most situations a developer has no legal recourse against a local authority building control service that approves defective works or fails spot defects during site inspections. This is because:
• The developer cannot claim damages for breach of contract because there is no contract between it and the local authority.
• The House of Lords decision in Murphy v Brentwood District Council [1991] UKHL 2 prevents the developer claiming damages in tort.
• There is no statutory provision imposing liability on the local authority building control service.

In very limited situations a homeowner may be able to seek judicial review based on breach of Article 8 of the European Convention on Human Rights (ECHR) (which protects the right to respect for private and family life). However, in the recent case of R (Gresty and another) v Knowsley Metropolitan Borough Council the Court refused the homeowners permission to apply for judicial review against the local authority.

In this case, in 2001, the homeowners, Mr and Mrs Gresty drew up plans to extend their home and submitted them to the local authority for Building Regulations approval. The local authority approved the plans in July 2011 and the homeowners engaged a building contractor to carry out the building works. The works were inspected between July and November 2001 by the building control officer. However, it quickly became apparent that the works were defective and required extensive remediation.

The homeowners informed the council that they felt it had failed to perform its Building Regulations duties, but the council denied liability in May 2002. In 2011 the homeowners sent the local authority a formal letter of claim alleging that the local authority was guilty of maladministration and a failure to discharge its statutory duties, amounting to a breach of Article 8 of the ECHR and as a result the local authority had a duty to restore the homeowners’ house.

When the case was heard earlier this year in the High Court the homeowners’ application for judicial review was refused as the legal principles for deciding whether a local authority owes a positives obligation under Article 8 of the ECHR did not apply to this situation.

Also, it was a question of time. The Human Rights Act 1998 requires proceedings to be brought within one year of the date of the act and judicial review proceedings are subject to a require that they are brought promptly and within three months.

Should you have any queries regarding building works please contact your local authority building control service before proceeding as I have seen the problems that can arise when selling a property if relevant building works have not been approved and “signed-off” by the local authority.

Cathy McFadden, Associate

The whole essence of the awards is to celebrate the accomplishments and achievements of the legal profession and recognise and reward the wide range of skills and talents in the region.

As well as showing sector specific skills within the area of practice, nominees are required to display teamwork, innovation and service, particularly in the context of the current financial/business environment, client sensitivity, a commitment to quality and value and an awareness of the needs of and sensitivities of the sector.

We at Croftons are proud to be one of Manchester’s longest-standing social housing teams, known and valued by clients for a highly personal service, excellent value, outstanding sector knowledge and sensible costs.

We are pleased to have been short-listed in this category as it is great recognition of the strength and quality of work within our Property Team.

The results dinner will take place in March 2012. Other finalists for this category are Eversheds LLP, Pannone and Addleshaw Goddard. Full details of all categories and finalists for Manchester Legal Awards 2012 are now available.

In Hardy & another v Haselden & others [2011] the Claimant, Mr and Mrs Hardy, moved to a farm which was owned by the Defendant, Mr and Mrs Haselden and their daughter Mrs Ollerton. However, crucially, there was no written agreement between the parties stating the terms under which Mr and Mrs Hardy could reside on the farm.

The Claimant claimed to have an oral agreement with the Defendant that they could live on the farm for as long as they wanted in exchange for a monthly rent of £200. Ten years after moving to the farm the Claimant sought a declaration that they had a tenancy for life, taking effect as a term of 90 years pursuant to section 149(6) of the Law of Property Act (LPA 1925).

Granting a lease for the life of a tenant used to be common. However, as the length of the tenant’s life was uncertain, so to was the length of the term of the lease! Therefore, The LPA 1925 intervened to automatically convert certain types of leases into leases for a term of 90 years. The qualifying lease includes a lease granted for the life or lives of the tenant(s) so long as a rent or premium is payable by the tenant(s).

In the County Court, the district judge made the declaration sought and ordered the owners of the farm to execute a lease in favour of Mr and Mrs Hardy.

The owners appealed and the Court of Appeal set the County Court’s order aside because:-

• There was no evidence in the particulars of claim given by the Claimant to support their claim to a lease under section 149(6) of the LPA 1925;
• The alleged terms of the oral agreement were not consistent with the grant of a lease as there was no term certain; and
• Even though the alleged terms of the oral agreement might give rise to a life tenancy, they were not in writing. Leases for a term of three years and over must be in writing in order to create an interest in land.

Therefore, the Court of Appeal held that there was no grant of a tenancy, never mind one that could be converted to a 90 year term by section 149(6) of the LPA 1925.

This case is harsh reminder of the formalities which are required to be met in order to create a lease. Should you wish to discuss any of the issues raised by this case with a property specialist please feel free to contact us on 0845 838 7013 alternatively, you can use our contact form.

Cathy McFadden, Associate

Accordingly to Channel 4’s findings almost two million families in Britain are on the waiting lists for social housing, and many live in unsuitable temporary accommodation or are struggling to pay the increasing rental payments in the private housing sector.

In addition, the recession has meant that homelessness is a reality to thousands across the social spectrum as people struggle to make ends meet.

Despite the vast numbers of affected people, one million properties lie empty across the UK; with 350,000 thousand of these voids empty on a long term basis!

The season kicks off tonight, Monday 5th December, with journalist Jon Snow and a team of reporters going undercover in the rental market to investigate “the reality of life for people at the mercy” of private rogue landlords and they find out what happens when you are homeless and desperate in “Landlords From Hell”.

Following which, Architect and the Empty Homes Campaigner, George Clarke, investigates some of the issues that have contributed to the housing crisis.

In advance of tonight’s programmes you can join the campaign to fill up Britain’s empty homes by adding your name to the online petition.

We would love to hear your thoughts and ideas on how to solve the housing crisis.

Cathy McFadden, Associate

In Sharma and another v Simposh Limited [2011] the defendant, Simposh Limited, owned a site and intended to develop it in phases. Potential buyers, Mr Shama and Mrs Kuruppu, the Claimant, discussed acquiring phase one from the Defendant and the Defendant indicated it would complete phase one for the sum of £1.1 million.

The Claimant paid to the Defendant a non-refundable deposit of £1,600 in return for a two week period to ascertain if they could fund the purchase. It was not disputed that this £1,600 was non-refundable. The parties agreed orally that if the Claimant paid a further £53,400, the Defendant would continue to build the development, keep the offer to sell to the Claimant for £1.1 million and take phase one off the market. The Defendant continued to develop phase one, but the Claimant decided not to complete the purchase and sought recovery of the £53,400.

Originally, the County Court Judge held that even though the Defendant had honoured its part of the arrangement, as the deposit was paid under a void contract, the Claimant was entitled to the repayment of £53,400.

The Defendant appealed and the Court of Appeal held that the company could retain the £53,400 deposit. The oral agreement between the parties did not comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and had no contractual effect. Therefore, it was only a declaration of intent.

The Claimant argued that a seller cannot lawfully retain a deposit paid by a buyer under a void agreement. The Court of Appeal disagreed and held that where a contract is void it is still possible for ownership of a deposit to pass. Whether ownership passes depends on the parties’ intention at the time payment was made.

If payment of a deposit was intended to be conditional on the purchase completing, the seller will have obtained only conditional title to the deposit and would be bound to return the money if the transaction falls through.

If it was intended that the deposit was paid unconditionally, then ownership will pass to the seller who is entitled to keep it.

On the facts, the parties had intended ownership of the deposit to pass to the Defendant.

The next issue the Court of Appeal had to address was had the Defendant failed to perform its side of the “contract” which would entitle the Claimant to restitution. The court held that the Defendant had honoured its obligations; therefore Mr Sharma and Mrs Kuruppu’s claim of failure of consideration was not substantiated.

This recent case confirms that where a deposit is paid under a void or illegal contract it is not automatically refundable. It also highlights the importance of having a written agreement in place in respect of payment of any deposit in order to avoid similar disputes.

To discuss any issues raised in this article with a property specialist please feel free to contact us on 0845 838 7013 alternatively, you can use our contact form.

Cathy McFadden, Associate

At present, first time buyers can claim SDLT relief if they are purchasing a residential property which is £250,000 or less.

When the SDLT threshold was raised from £125,000 to £250,000 for first time buyers by the Labour Government in the 2010 March Budget it was anticipated that it would be a temporary arrangement and an end date of 24 March 2012 was set.

However, it was a manifesto pledge by the Conservatives to make the temporary increase in the SDLT threshold for first time buyers permanent. Therefore, in May 2010 the Coalition Government agreed to review its effectiveness with a view of making the £250,000 SDLT threshold permanent.

The Government states that the SDLT relief has been “ineffective” in increasing the number of first time buyers entering the market so the relief will therefore end on 24 March 2012 as planned.

If you have any questions about the SDLT relief coming to an end call 0845 838 7013 to talk with one of our property specialists, or complete our contact form and one of our property specialists will get in touch with you.

Cathy McFadden, Associate

On 15 November 2011 the Localism Bill was granted Royal Assent and the Localism Act 2011, which will introduce many fundamental reforms in many aspects of local government, has formally abolished the requirement to provide a HIP when selling a property!

Since the suspension of HIPs I feel that sellers have really benefitted as they have been free to market their property as soon as they have ordered the Energy Performance Certificate (EPC). This has been great for many of my ‘seller’ clients who are eager to move as they have been given a chance to find a potential buyer quicker than before.

Many commentators last May thought that buyers may be disadvantaged by the collation’s move as they would no longer be privy to certain information about a property before they make an offer and that there may be slight delays during the conveyancing process as a result.

However, in my experience over the past year buyers have not been affected by not obtaining a HIP at the outset. Often the searches contained within the HIP were out of date and had to be re-ordered by the buyer’s solicitor therefore the HIP did not always save the buyer time or money.

If you are selling a property please remember that you are still required to commission an EPC before marketing your property.

If you wish to discuss any aspect of selling or buying a property, call 0845 838 7013 to talk with one of our property specialists, or complete our contact form and one of our property specialists will get in touch with you.

Cathy McFadden, Associate