Introduction
Welcome to the December 2021 edition of the Property Newsletter
from Gatehouse Chambers. Season’s greetings to one and all. The
team here hope you and your family have a relaxing and peaceful
break and a happy New Year.
In the first part of our two-part series, Katrina Mather, Lina Mattsson and Jonathan Titmuss give us their
thoughts on the Commercial Rent (Coronavirus) Bill and in
particular how it would work in practice as currently drafted.
David Peachey gives us an overview of Kensquare Limited v Boakye [2021]
EWCA Civ 1725, in which he acted for the respondent
landlord.
For a festive brainteaser why not try our Christmas Dingbats,
festively prepared by our very own Andy Creer. Answers in the next
Newsletter!
Gemma de Cordova spins the wheel of
questions for us.
The next Newsletter will be in January 2022.
Carl Brewin – Editor
Activity report – a selection of what some of us have
been up to this month
John de Waal QC has been preparing for a
trial in January – it will be the first time an application
for an access order under the Access to Neighbouring Land Act 1992
has been heard in the High Court.
Brie Stevens-Hoare QC has been busy this
month with looking at what is a sham transaction, how to avoid the
devastating consequences of forgery by one joint owner as well as
digging deep into mining rights and yet more boundary disputes.
Brie has also been having some fun with the limit working how
enforceable overage and promotion agreements might be, and of
course the number of cladding related issues for freeholders and
leaseholders alike continue to grow.
Andrew Skelly spent time preparing for a
three-day trial in Exeter, in a case which started in 2016 dealing
with damages for trespass, only to have the court vacate the trial
the day before due to judicial unavailability. In other courts, two
CCMCs were vacated for similar reasons. Otherwise, Andrew was in
the Upper Tribunal again, seeking to discharge another restrictive
covenant which was preventing the construction of an extension.
Happily, there was judicial availability, and now the decision is
awaited. Wearing a different hat, Andrew has been sitting as a
Recorder in the Crown Courts at Southwark and Woolwich.
Laura Tweedy has had a lovely few weeks
acting as a property mediator, doing lots of Christmas shopping
(one for me, one for you…) and trying to evict some really bad
men in order to save the neighbourhood’s Christmas!
For Monty Palfrey, roofs seem to be the current
theme. The pinnacle of light relief coming whilst acting for a
landlord in a case involving an internal climbing wall and the
comment – not by the client – “you’ll never
find a dry mountain in the UK”! Clearly, he needs a break!
Peter Petts has been advising offshore
trustees in respect of English trusts of land and orders for sale,
and defending a breach of trust (amidst many other allegations)
claim.
Jamal Demachkie has had a busy build up
to Christmas, with a long-running saga involving the appointment of
a manager in the FtT, a High Court claim to rectify a transfer and
partnership agreement, and a contested claim for relief from
forfeiture.
John Clargo was off ill for a week
(albeit no positive testing). The rest of the month involved
easements, boundaries, escheat and a lease renewal pickled in the
vinegar of a delayed registration of the reversion. And, on a
sweeter note, sourdough panettone (chocolate and peanut
butter).
Daniel Gatty has been working towards an
interesting trial about disclaimer and vesting orders regarding a
valuable lease which passed to the Crown at common law following
the striking off of the overseas company which owned it … but it
settled. So he turned his attention to a trial about a prescriptive
easement of air to an air conditioning vent… but it settled. So
he got on with other things, mostly concerned with conveyancing
negligence.
Morayo Fagborun Bennett has been advising
on a collective enfranchisement and service charge dispute, has
completed day two of a three-day arbitration concerned with
disrepair in a leasehold property, and obtained an injunction under
the Protection from Harassment Act 1997. She is looking forward to
a relaxing (?) Christmas break with her three kids!
Lina Mattsson stocking has been filled
with s 84 applications, a TOLATA trial and fraud. She is now
looking forward to her smörgåsbord with lots of pickled
herring. So ready for Christmas…
Charlotte John is very pleased to be able
to say that judgment has finally been handed down confirming that
her client is the beneficial owner of twelve properties, held on
constructive trust for him by his former mortgage advisor.
Charlotte took the case on pro bono in February 2019. After the
better part of three years of litigation (with accounting issues
yet to be resolved), involving issues of forgery, breach of
fiduciary duty and undue influence, a three-day trial adjourned and
relisted for a further two days during lockdown as a result of the
defendant’s mid-evidence revelation that he had undisclosed
documents, a last minute witness who had to be recalled after
finding a suitcase of papers including a critical document that
cracked the case open, and an application from the other side for a
retrial following the circulation of the draft judgment which took
a further eight months to resolve, the case can truly be described
as the gift that keeps on giving!
Cameron Stocks spent a considerable
amount of his month in the First-tier Tribunal acting in cladding
related matters including s20 dispensation applications and the
appointment of managers to deal with Building Safety Fund
applications. When back in the County Court, Cameron was successful
in obtaining an extended civil restraint order against a vexatious
litigant in a long running TOLATA dispute which involved over
fifteen interim applications, three appeals, a judicial review and
a partridge in a pear tree!
James Hall has been advising on a
difficult off-plan purchase matter where the contract limits rights
to rescission by reference to design/build changes unless they
amount to ‘material changes’ as defined – and where
the definition refers to matters such as ‘significantly’
and ‘substantially’ altering use, enjoyment and/or value of
the property – always a lot of scope for argument there.
Looking forward to hopefully a slightly more normal Christmas than
last year…
Steven Woolf spent nine consecutive days
in Court; three days in the Court of Appeal addressing the
possibility of injunctions against Persons Unknown, two CCMCs and a
four-day Planning Appeal. The Holiday period could not come
sooner.
David Peachey has been in the Court of
Appeal on behalf of a residential landlord, arguing about s.146
costs clauses, recovery of costs through the service charge, and
interim service charge demands. David’s client succeeded
regarding recovery of FtT legal costs directly from the tenant,
which of course (David would say) was the most important point!
Events
Gatehouse Chambers #Brews
The Gatehouse Chambers Team continues to host its #Brew series
on Zoom; an informal chat that lets you in to our team’s
thoughts and discussion surrounding current issues and practical
challenges practitioners and their clients are facing.
Look out for more dates in the New Year!
Behind the Façade Series
The Construction, Property and Professional Liability Teams at
Gatehouse Chambers have joined forces to launch their Behind the
Façade series of online talks looking at the issues arising
out of façade and cladding claims. The series began in
October 2021 and will run until June 2022. Click here to download the full
programme.
Gatehouse Chambers on Demand
You can catch up on our previous webinars and Brews by visiting
the Insights page on our website.
Part 1: the Commercial Rent (Coronavirus) Bill
We are (or were!) emerging from nearly two years of restrictions
caused by the Covid-19 pandemic which forced people to stay at home
and businesses to close causing shock waves throughout the economy.
The government put in place the package of emergency measures and
support which we are now all too familiar with. However, the
question always lingered, what next? What about when the money runs
out? The answer for tenants has come in the form of the Commercial
Rent (Coronavirus) Bill which attempts to ease commercial occupiers
out of the moratorium on action against them by landlords for
non-payment of rent.
Read the first article from Katrina Mather, Lina Mattsson and Jonathan Titmuss here.
Service charge demands and tenant liability for litigation
costs: Court of Appeal hands down important judgment
On Monday 22 November 2021, the Court of Appeal (Newey,
Stuart-Smith & Andrews LJJ) handed down judgment in an
important case in service charge disputes.
David Peachey appeared for the respondent
landlord. Click here to read his summary.
Did you see? You may have missed…
Global 100 Ltd v Laleva [2021] EWCA Civ 1835, 3
December 2021
Click here to read the case summary
from Lina Mattsson.
Christmas Dingbats
Download here. Answers to follow next month!
“Gatehouse Chambers Unrobed” – get to know us
better
Each month, a member of our property team has to spin ‘the
Wheel of Questions’ and answer the first three questions that
come up. This month, Gemma de Cordova tried her luck with the
wheel.
What is your guilty pleasure?
Singing along to Kidz Bop. My boys enjoy these child friendly
covers of songs performed by children for children. Somehow,
I end up joining in too.
You can eat one thing for every meal, what will you
eat?
I would go for a (mild) vegetable curry as it is a dish that is
very tasty, with a variety of textures (as well as being relatively
healthy). On that basis, I am hoping that I wouldn’t get bored
of it too quickly!
Who, or what was your biggest teacher?
I would have to say my children. Becoming a parent has taken me
on the longest, steepest, learning journey and I am only at the
beginning of it. Every time you think you know what you doing,
along comes another curveball. The only thing I am sure of, is that
there is plenty more for me to learn.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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