The High Court has recently held that settlement negotiations which were ‘subject to contract’ and ‘without prejudice’ could be binding.

What do you do if you think the other side are guilty of a fundamental breach of contract, therefore entitling you to repudiate the contract?

With new build developments, it has long been common for developers to use sale contracts that provide for completion to be fixed by reference to the date of service of a notice by the developer (ie the seller) confirming that the property is practically complete. This, of course, allows the developer to control the completion timetable.

An unhappy buyer trying to get out of a new build contract (typically because of a decline in property prices) will often find that a mortgage offer has been withdrawn because of the reduced loan-to-value ratio. In practice, this will usually mean that the buyer cannot proceed, even if he is willing to do so.

If a buyer is being forced to complete a new build purchase contract, but is short of funding (eg because the mortgage has been withdrawn due to the reduced loan-to-value ratio), then it may be worth offering to make a partial payment to the developer, with the balance being owed to the developer secured by a second mortgage over the property.

Estate agents should ensure that their terms and conditions cover the situation where a property is sold through the transfer of shares in a holding company.

Last year, the High Court held that a Foxtons’ rental commission agreement was partly unenforceable because its terms were ‘unfair’. In particular, this applied to a provision in a letting agreement which said that if T subsequently bought the property from L, then Foxtons would be entitled to an estate agent’s commission. Such a provision would be ‘unfair’ if Foxtons’ customer was a ‘consumer’ (under the Unfair Terms and Consumer Contract Regs 1999). At the same time, other provisions might not be automatically unfair, but would fail if they were not clearly explained to the ‘consumer’ (eg an entitlement for Foxtons to charge a commission if T renewed the lease, even if Foxtons were not involved in those negotiations).

The arguments rumble on as to the extent to which goodwill should be subject to SDLT. An article in the Gazette makes the point that goodwill is not an estate, interest, right or power in or over land, and nor is it an obligation, restriction or condition affecting the value of the estate – and thus it should not come within the scope of SDLT (under FA 2003).

The terms for the sale of shares in a company had been agreed between the parties; heads of agreement had been drawn up, and solicitors instructed. In due course, one side’s solicitor put forward a draft that did not accord to what had previously been agreed (or was in the heads of agreement); the other side corrected that error, even though it could have been to their client’s advantage. In due course the transaction was completed, but a few years later one of the solicitors was sued for having failed to take advantage of the mistake made by the other side. As it turned out, that mistaken approach would have been significantly to the client’s advantage. The question then arose as to whether or not there had been a breach of duty of care by the solicitor.

The Upper Tribunal (which hears appeals from First-tier Tribunals) is not subject to judicial review by the High Court.

T was able to serve a break notice after five years. T was defined as two companies, who held the lease jointly: Exel, and its wholly-owned subsidiary, Tibbett.

We have frequently mentioned the importance of the consultation procedures when dealing with residential service charges. A failure to comply with those procedures means that L is restricted to claiming £250 (maximum) from each T.

A mortgagee can obtain possession either by court order or by peaceable re-entry. Once in possession, the mortgagee can choose whether or not it wants to sell the property, and there is no obligation to consult with the mortgagor. Subject to an overriding duty to maintain the property and keep it in good repair, the mortgagee can therefore hold onto the property for as long as it wishes (eg until the property market recovers). In short, there is no obligation on the mortgagee to sell within a reasonable time.

A recent tribunal decision has held that a property letting business could be a ‘trade’ for income tax purposes, but not a ‘trade’ for CGT purposes (and thus taper relief and entrepreneurs relief would not be available).

When can you start charging interest on unpaid costs?

If you issue a gross sum bill, can the client then request a further detailed breakdown?

The Zurich has closed its Zurich Building Guarantee business, covering new home warranties and building control.

When the right to enfranchise (to buy the freehold) was introduced by LRA 1967, there was a requirement that T had occupied the premises as a ‘residence’ for at least five years. That five-year period was reduced to three years in 1993, and the residence requirement was largely abolished by CLRA 2002.

Under CLRA 2002 the standard test is now one of two years of ownership (not residence). As far as businesses are concerned, the right to enfranchise does not apply to an LTA 1954 business tenancy, unless T has been occupying the ‘house’ as his ‘residence’ for at least two years (which would be impossible for a company).

The Remedies Directive came into force on 20 December 2009, with a view to encouraging greater transparency in the procurement process (in particular, to reduce the number of ‘direct awards’, where contracts are awarded without an OJEU advert). This has been done by giving greater remedies to aggrieved bidders and encouraging them to litigate in the case of a breach. In particular there are:

enhanced notice requirements: the old ‘two-stage’ approach where bidders could ask for more information within two working days has been scrapped. Now, all information has to be given up-front by the issue of an ‘award-decision notice’ to everyone who submitted a bid. This will include the award criteria, the reasons for the decision, and the score of the winner (and of the person sent the notice);

The Building Societies Association issued a standard set of mortgage instructions at the beginning of January. These will apply in residential transactions involving BSA members (which includes most of the major societies).

The Supreme Court has upheld the right of a developer to connect to a public sewer, even if the statutory undertaker is concerned that the additional discharge will overburden the sewage system. The cost of any necessary works will fall on the sewage undertaker (and not on the developer).

Two recent CA decisions on the use of rights of way to allow access to development land. Together, they show a non-restrictive approach: