Bush v Summit Advances Ltd
Be careful how you word your report.
This High Court case at first makes for pleasing reading for professionals; it is a failed claim against a valuer.
In this claim, the Claimant argued that the valuer owed a personal duty of care because he had instructed that specific individual because of his experience. The High Court held that an individual acting as an agent will not be personally liable for his or her advice unless that person has indicated, by words or conduct, that he or she was accepting personal responsibility in the event of any negligence, and that representation was reasonably relied upon.
In this particular case, the terms of business stated ‘the valuer accepts responsibility’, but ‘valuer’ was not defined and the report had been prepared by the company with the company’s logo, although it was signed by the individual. The Court held that it was wildly improbable that the employee would have accepted personal responsibility or that anyone reading the report would have understood that to be the case.
All straight forward so far, however, the Court went on to say that the claim may have had some substance if the valuer had stated his opinions using the expressions ‘I’ and ‘my’ rather than ‘we’ and ‘our’. This is yet to be tested, but we would suggest that it is not a risk worth taking.
Spielplatz v Pearsons
Fixture or chattel
Whether something is a fixture or a chattel has implications not just when a tenant is seeking to vacate, it is also relevant when considering repairing obligations, rent reviews, dilapidations and lease renewals. Often assumptions are made, but this can be dangerous for both the landlord and the tenant.
This case concerned a lease of a plot of land at a naturist resort. The lease was of the plot only and a chalet had been built upon the plot. The chalet became the defendants’ permanent home and they sought protection under the Housing Act 1988.
It was common ground that both the landlord and the tenants believed that the building belonged to the tenants, but the Court said that this was irrelevant. The Court also said that it did not matter that the chalet was not referred to in the lease. The test was simply whether the chalet was a fixture or a chattel. If it was a fixture, the tenants would have protection under the Act, if it was not, they would have no such protection because the lease would not be of the dwelling. The test, of course, is one of annexation and, in this case, the Court accepted that the chalet could not be removed without dismantling it. Consequently the chalet was a fixture and formed part of the demise granted by the lease so the tenants were protected tenants.
In each instance we should consider the question of what is a fixture by reference to the annexation test, rather than base findings on assumptions made by the parties.
For more information about any of these cases or for advice on a contentious property issue please contact Michael Clark