Snapshots from Commercial Property – March

Service Charges and Fair Proportions

Whether or not apportionment of service charge is “fair” was recently considered by the courts in Criterion Buildings Ltd v McKinsey and Co Inc.  The tenant claimed that the landlord had assessed the floor area of another tenant in a way that resulted in an unfair apportionment of costs in favour of that other tenant.  The court held that fairness was best assessed subjectively by a landlord rather than objectively, as a landlord has no axe to grind.  It also noted that a landlord’s task is to decide what is fair and the burden of proving it is unfair rests with a tenant.  Here, it was held that the tenant had not proved unfairness as the landlord had assessed the proportions on the same basis as the previous landlord and the tenant had not challenged that basis.   So, whilst a “fair proportion” provision can be useful in allowing apportionments to be adjusted over time, if you wish to challenge an apportionment it may be best to challenge sooner rather than later.

Adverse Possession and the requirement of an intention to possess

The enclosure of land is often considered to be a key element of proving an intention to exclusively possess the land in order to support a claim for adverse possession. However, in the case of Amirtharaja & Anor v White & Anor whilst the land in question was enclosed by gates, a statutory declaration, relied upon as evidence supporting the respondents’ use of that land, fell short of expressing an intention to possess but instead was more consistent with an easement for access.  As such, the respondents’ claim failed.  Whilst enclosure is strong evidence of an intention to possess it is not unequivocal evidence and a successful adverse possession claim requires unequivocal evidence of an intention to possess.