Nuisance Creation of nuisance. Queen's Bench Division, Technology and Construction Court: The court ruled that the first defendant had been liable to the claimants in negligence and nuisance for loss and damage caused by flooding, to include the cost of necessary remedial work including the cost of abating the nuisance.
For the purposes of of the Landlord and Tenant Act 1987, the relevant premises were to be ascertained in an objective way, disregarding the disposal concerned. Many factors could be relevant in determining the extent of the relevant premises. The provisions of s 1(2) of the 1987 Act were then applied to those premises to determine whether they were premises to which Pt 1 of the Act applied.
Ordinary possession of land was 'adverse possession' so far as the person out of possession and the were concerned. The focus was not on the nature of the possession but on the capacity of the person in possession. Accordingly where, as in the instant case, a mortgagee had remained in exclusive possession of the mortgaged property for more than 12 years after the limitation period began to run, he was in 'adverse possession' of it for the purposes of the 1980 Act.
A declaration made, by a landlord, in the form of para 8 of Sch 2 to the Regulatory Reform (Business Tenancies) (England and Wales) Order2003, SI2003-3096, was 'a declaration in the form, or substantially in the form, set out in paragraph 7' of the 2003 Order. The converse could not be true as a para 7 declaration would not provide a tenant with the protection afforded by a declaration made under para 8. In the instant case the landlord's erroneous making of a declaration in accordance with para 8 of the 2003 Order, instead of in accordance with para 7, had not thwarted the essential purpose of making such a declaration, and, accordingly, to of the Landlord and Tenant Act 1954 had been validly excluded from the licences agreed by the parties.
On the evidence, there had been no actionable misrepresentation on the part of the claimant vendor of land since it was known that the land was contaminated with chemicals and although a more specific question could have been asked about the contamination of the central area of that land that did not mean that there had been any fraud or deceit.
The objectives of Council Regulation (EC) 44-2001 (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) included allowing the claimant easily to identify the court before which he might bring an action and the defendant reasonably to foresee the court before which he might be sued, and enabling the court seised to be able readily to decide whether it had jurisdiction on the basis of the law of the Regulation, without having to consider the substance of the case. In order to further those objectives a jurisdiction clause was governed by the provisions of the Judgments Regulation, the aim being to establish uniform rules of international jurisdiction. In the instant case, the claimant, a wholly owned subsidiary, had not been a party to a settlement agreement that the defendant had entered into with its parent company, and accordingly it had not been bound by the jurisdiction clause that those companies had agreed.
Landlord and tenant Forfeiture of lease. The court, in dismissing the defendants' appeal against a decision to allow the claimant to forfeit its tenancy, held that the claimant had not waived its right to forfeit the defendants tenancy based on the principle that an unqualified demand for future rent would operate a waiver and the strict rule applicable to receipt of rent, namely that receipt of rent amounted to an election to treat the tenancy as continuing and constituted a waiver, was applicable.
The phrase 'any premises in which the flat is contained' in s47 of the referred to an objectively recognisable physical space, something which the landlord, the tenant, the visitor, the prospective purchaser would recognise as 'premises'. In a row of terraced houses, or in a pair of semi-detached houses, a visitor would regard each house as the 'premises'. In a single block of flats with several entrances leading to separate staircases, the visitor might also say Block B rather than the whole building. Much would depend upon the physical facts on the ground.
In the instant case, the judge had been entitled to conclude that a loan made to the claimant by the defendant was for a purpose outside the claimant's business or trade within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 ().
Sale of land Completion. Where the claimant had entered into a contract with the defendant building developer, agreeing to take leases of 14 residential flats with a view to completing sub-sales prior to completion, the defendant's rescission of the agreement for failure to complete had been valid, since there was no identifiable legal basis on which the claimant could assert that the defendant's own marketing of the flats constituted a breach of contract, and in the circumstances any such breach would not in any event be causative of the claimant's failure to complete.