New Instruction for Property Litigation Team

Colman Coyle Property Litigation Team has been instructed by BOH Limited and Layhawk Consultants Limited to seek permission to appeal a Judgment of the Chancery Division handed down in December 2009.

The case involves commercial premises over which there was a long lease of land for use as an electricity substation serving Wembley. 

The facts are complex but in essence the freehold which had been in single ownership when the lease was granted became severed and EDF Energy, the Claimants, became owners of a part of the freehold.

The Court decided that despite owning the freehold and leasehold of one plot there was no merger of EDF's title and because of an amendment to the Landlord and Tenant Act 1954 the tenancy of the whole of the land continues under and until all the freeholders (including EDF) agree to serve a Notice under S.25.

Effectively, this created a lease in perpetuity with no possibility of rent increase or development of the land.

Permission to appeal has been sought from the Court of Appeal on the grounds that the Judge erred in finding there had not been a merger and also on the ground that the effect of the amendment to the 1954 Act is to deprive the freeholders of their property rights in breach of Human Rights Legislation (this later point was not argued below).

At the time of writing we await to hear whether permission to appeal will be granted, for what could potentially be very important legal and practical issues.