Property Litigation

Judicial Review of the Leasehold and Freehold Reform Act 2024: R (on the application of ARC Time Freehold Income Authorised Fund and others) v The Secretary of State for Housing, Communities and Local Government [2025] 

This was an application brought by a number of freeholders to challenge, via judicial review, a number of the measures that are to be enacted under the Leasehold and Freehold Reform Act 2024. The landlords claimed that the new provisions in the Act would infringe their rights to peaceful enjoyment of their properties under Article 1 of the First Protocol of the European Convention of Human Rights. Given the very broad range of changes in the Act, this case is important for all landlords, tenants, developers, investors and funders.

The main changes to which the freeholders were objecting were:

• capping the tenants’ ground rent ‘buy out’ at 0.1% of the value of the freehold
• removing marriage value from the calculation
• removing the right for landlords to claim their costs

The court disagreed. Whilst it accepted that the changes would affect the landlords, it considered that the measures struck a fair and proportionate balance between private property rights and public interest. It was felt that the landlords would still be compensated, which also applied to charities, meaning that the lack of an exemption for charities was acceptable. Overall, the court reminded the parties that the Government is entitled to proceed with change where that will make the process more cost effective and straightforward.

It is not yet known whether the decision will be appealed successfully.

You can access a copy of the full judgment here: R (on the application of ARC Time Freehold Income Authorised Fund and other) v The Secretary of State for Housing, Communities and Local Government [2025] EWHC 2751 (Admin) 

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Insurance commission costs and administration fees: London Trocadero (2015) LLP v Picturehouse Cinemas Ltd [2025]

In June 2026, the Court of Appeal will hear an appeal brought by the landlord against the High Court’s decision that it overcharged, and so must repay, insurance rent to its tenant.

The question before the High Court was whether landlords can charge insurance commission costs and administration fees to tenants using the covenant in the lease to pay insurance rent. In this case, the landlord had charged the full premium to the tenant, notwithstanding that it had already received broker commission rebates in the region of 60% of the cost of the premium.

The tenant argued that the landlord should not be able to use this covenant to make a profit. The landlord disputed it on the basis that it was entitled to use the covenant to charge the full cost of the policy, regardless of the rebates.

At first instance, the High Court found in favour of the tenant, on the basis that the insurance rent was not a premium that was ‘payable’ and therefore recoverable by the landlord. The court also found that there was an implied term in the lease to oblige the landlord to act reasonably when arranging insurance, which means acting commercially at arm’s length to secure a market rate policy, rather than seeking a personal profit. It therefore ordered the landlord to repay the surplus charges.

Whilst the landlord is appealing, and we will not have this decision for some months, the current decision has significant implications for all landlords and tenants where the landlord places the insurance policy and recovers the cost from its tenants. 

All parties should check their leases to see whether landlords are entitled to commissions and fees, and parties entering into new leases may wish to consider explicit drafting to cover the point. 

Tenants who have paid these sums may wish to seek greater transparency on what they have paid, including requesting a full breakdown of the costs and any rebates or commissions. Landlords should be checking to see whether there are any points that will support retaining the funds, for example work carried out to ensure lower costs across a block policy.

All landlords and tenants, other than where the tenant places its own insurance, must be aware of this and the need to proceed with greater transparency and due diligence. Both insurance practices and lease drafting will need to evolve in light of this.

You can access a copy of the full judgment here: London Trocadero (2015) LLP v Picturehouse Cinemas Limited & Ors [2025] EWHC 1247 (Ch)

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Obtaining access to residential property: Southern Housing v James Emmanuel [2025]

This case is a reminder for landlords that, even where a tenant is refusing access to a property for safety checks, the court cannot authorise obtaining access by force. This is the position even where the checks are required by law so that failure to complete them could expose both the landlord and the tenant.

In this case, the landlord sought access to a residential property to carry out a gas safety check, which of course landlords are legally required to do. When the tenant persistently refused to allow access, the landlord successfully obtained an injunction – however, the tenant also disregarded that.

The landlord applied to court to confirm that it could enter the property forcibly, but the court refused to make the Order. This was on the basis that the court has not been granted such a power by any current statutory provisions. Instead, the landlord had to rely on one of its other options, namely to terminate the tenancy and seek possession, or pursue an action against the tenant for contempt of court.

Although it is only a County Court decision, and is therefore not binding, the case is a useful summary of how the Court might approach the position.

You can access a copy of the full judgment here: Southern Housing v James Emmanuel [2025] EWCC 58 

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Newcomer injunctions: MBR Acres Ltd v Curtin [2025]

The law on ‘newcomer injunctions’ is an area that is continuing to develop, with recent cases including rights to protest and whether drones can be flown over a property. Following the decision of the court in Wolverhampton City Council v London Gypsies and Travellers [2023], the principle that property owners can seek an injunction to restrain trespass even where the trespassers are not yet known to the property owner, there have been more cases on the point.

In this case, the court was asked to consider whether persons unknown could be injuncted, even before they started to pilot drones over, or set foot on, the land in question.

The land owner was seeking injunctions against both known animal rights protestors and newcomer injunctions because its property contained a laboratory where animals are bred for testing and thus had been the target of various protests by animal rights protestors.

The court, having considered other judgments, decided that it was for the land owner to prove that there was a “compelling need” for an injunction. In addition to this, the land owner had to satisfy the court that it was “just and convenient” to grant the injunction and that there was no suitable alternative and effective option. The court did express some concerns that this type of injunction might stifle the right of an individual to freedom of speech and the right to protest.

Nonetheless, it held that there was a sufficient risk in this case to grant a newcomer injunction for a period of 2 years, to prevent protestors from blocking the land owner’s access to the public highway.

In respect of the drone element, and whether this could constitute a trespass so as to justify a newcomer injunction, the court felt that this could only occur where the drone interfered with the land owner’s “ordinary use” of its own land. Consequently, it would depend upon the facts, such as the height of the drone flight path and the height of any buildings. As the drones here had been flown some 15 feet in the air, the court did not grant the injunction on the basis that they were too high up to constitute an interference, but it did not rule out the ability to obtain such an injunction in circumstances where the facts were different.

You can access a copy of the full judgment here: MBR Acres Limited & Ors v John Curtin [2025] EWHC 331 (KB) 

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Redevelopment break options: Ministry of Sound Limited v The British and Foreign Wharf Company Limited and others [2025]

This case is another recent decision on whether leases that are renewed under the Landlord and Tenant Act 1954 should include a landlord’s redevelopment break option. 

When the tenant’s lease was due to expire in September 2024, it sought a new lease from the landlord. Whilst the landlord did not object to the grant of a new lease, the parties could not reach agreement on the terms. In particular, the 'overarching' point that was not agreed was the inclusion of a landlord’s redevelopment break clause, as the landlord was seeking a rolling break to be operable from June 2028 if the premises were required for redevelopment. 

The tenant objected to this, given the importance of the site to its business and the effect of this on the uncertainty of a rolling break option. It also pointed out that redevelopment did not seem overly likely, given the status of the venue as night time entertainment and the obligations for any developer to take that existing use into account, which it said meant that foisting the uncertainty of the break option on it was not justified.

The landlord argued that there was a real possibility of redevelopment during the proposed 15 year term of the new lease, and that in fact the premises are at the heart of a part of London that is ripe for redevelopment.

The court considered the arguments and the following key principles:

• The requirement for there to be a real and objective possibility that the premises will be required for redevelopment
• The need to assess the landlord’s wish to develop against the tenant’s wish for certainty, which requires the court to strike a fair and reasonable balance
• The obligation to make any break clause as fair as possible, without being overly rigid

Overall, the court agreed with the landlord that redevelopment was a real possibility, and that it is not unusual for tenants to face commercial uncertainty and have to make operational decisions. As the tenant had not challenged the proposed wording of the break clause, but only whether it should be included, the court therefore found that the inclusion of the wording was a fair and reasonable outcome.

Parties in this situation will therefore need to make sure that, even if the tenant is disputing the inclusion of such a clause at all, they still give due focus and attention to the content and nature of the break clause.

The case is a useful reminder of what will be required to justify such a clause, and the particular elements that will apply where the tenant is part of the local night time entertainment.

You can access a copy of the full judgment here: Ministry of Sound Limited v The British and Foreign Wharf Company Limited [2025]