Daniel Fluss v Queensbridge Terrace Residents Limited
Decision date: 17 August 2011
Neutral citation: [2011] UKUT 285 (LC)
Overall AI summary confidence: medium
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: medium
This appeal concerned the proper form and scope of a deed granting permanent rights under section 1(4) of the Leasehold Reform, Housing and Urban Development Act 1993 over amenity land adjoining a block of flats, the parties having advanced competing drafts (a simple "Crews" form and a detailed "BNI" form). The Upper Tribunal held that the s.1(4) grant must secure "as nearly as may be" the same rights as enjoyed under the leases as they exist subject to statute on the relevant date, rejected the BNI draft in its present form as inconsistent with that requirement (notably for lacking 1985 Act protections, for excessive regulatory powers, and for too wide a class of users), and directed substantial amendment of the BNI draft with unresolved points to be agreed or referred back to the LVT.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: high
The ratio is that the comparison required by s.1(4) is to the rights under the tenants' leases as those rights exist subject to the law of England on the relevant date (including statutory modifications), and that a s.1(4) grant must create permanent rights which cannot be undermined by reserved powers capable of curtailing or terminating those rights.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The tribunal noted but did not decide that it was arguable whether the freeholder is entitled to a price or compensation under Schedule 6 for granting rights instead of conveying the freehold; it also observed in principle that an easement deed may be executed by the grantee and can contain positive and restrictive covenants binding the grantee.