Introduction
Welcome to the last Gatehouse Property Team newsletter of 2023! We want to wish you a relaxing and magical Christmas time and a fun filled festive period.
We would like to share the fantastic news that Jamal Demachkie was awarded Real Estate Junior of the Year at the Chambers UK Bar Awards. This is Jamal's third award win, having won the prestigious Property Junior of the Year Award at the Legal 500 Awards in 2020 and 2022.
This month our '2 minutes with' video is getting to know James Hall. We have an article on FSV Freeholders Limited v SGL 1 Limited [2023] EWCA Civ 1318 by John de Waal KC and Gemma de Cordova, a report on Smith v Royal Bank of Scotland plc by Priya Gopal, and William Golightly reflects on the Renting Homes (Wales) Act 2016. Also this month, Lina Mattsson summarises Duchess of Bedford House TRM Co Ltd v Campden Hill Gate Ltd [2023] EWCA Civ 1470.
Last but not least, for those of you who may be concerned at Christmas time about the legalities of Santa flying over so many homes in one night, why not have a look at Daniel Gatty's latest edition of "A Practical Guide to Rights over Airspace and Subsoil", which was published in November 2023. Click here for details. Congratulations Daniel!
See you in 2024!
Editor – Laura Tweedy
News
Chambers and Partners
Following on from our Legal 500 results, we are very pleased to report a continued growth in our Real Estate Litigation rankings in the 2024 edition of Chambers and Partners.
We moved into Band 2 of the set rankings, four of our barristers moved up by one band (John de Waal KC – 1, Jamal Demachkie – 2, Emily Betts – 3, and Lina Mattsson – 4), and three have now been included in the tables (Andrew Skelly – 5, Laura Tweedy – 5, and Cameron Stocks – 'up and coming').
We would like to thank all our referees and clients who participated in the research process and took the time to comment on us.
What have we been up to?
John de Waal KC and Gemma de Cordova were successful in the Court of Appeal in the case of FSV Freeholders v SG1 Ltd [2023] EWCA Civ 1381, a case about offer notices in right of first refusal cases under the Landlord and Tenant Act 1987.
Brie Stevens-Hoare KC is busy thinking about adverse possession and boundaries, development agreements, options and a winter visit to the sea. If you are near the Kent coastline, look out for a woman in coordinated bright colours wandering along a windy beach! What better way to prepare for a January visit to the Supreme Court.
David Peachey successfully obtained the modification of a covenant over Florence Nightingale's childhood home in Kay v Cunningham [2023] UKUT 251 (LC), after a hard-fought trial in Derby that received coverage in various national newspapers. You can watch a webinar on the case here.
Phil Marriott has had a busy month looking at professional negligence in planning applications, nuisance arising from a leaking pipe on a golf course, and adverse possession of farmland.
Victoria Dacie-Lombardo escaped the wintry weather to enjoy a post-pupillage holiday in sunnier climes in November. She has been kept busy upon her return with a boundary dispute, a commercial lease renewal matter and plenty of possession hearings.
Cameron Stocks is emerging from a 5-day service charge trial led by Emily Betts concerning a verrrrry longstanding dispute between leaseholders, an RTM, a statutory manager and a freeholder.
When not having two trials about boundaries and easements settle at the door of the court, Andrew Skelly has had another month of water and drains – advising on high pressure water mains and surface water conduits, the discovery of which have frustrated development plans.
John Clargo was ill for a big chunk of this month but did manage to get some paperwork out of the way (easements, rent charges, business renewals and some property insolvency work) and finally got judgment (day one of trial in October 2021) in an interesting dispute about implied obligations on landlords in respect of retained property. He (landlord) persuaded the court to follow Gavin v Community Housing Association Limited.
James Hall has been dealing with the third and fourth hearings in a massive ongoing case involving the mistaken discharge of over 5,000 mortgages at the Land Registry, ably assisted by Will Golightly. For a report of the judgment in the second hearing, see Barclays Bank UK Plc v Terry [2023] EWHC 2726 (Ch).
Jamal Demachkie had an entertaining 3-day trial in Central London, successfully opposing a pre-1926 restrictive covenant claim. He has also been doing some judicial sittings, and found time to pick up a little award at the Chambers & Partners ceremony...
Daniel Gatty is pleased to report that the second edition of his book, A Practical Guide to Rights over Airspace and Subsoil, has just been published by Law Brief Publishing. So, if you are looking for an earth-shattering – and air-shattering – Xmas present, you know what to buy (from this link: 'A Practical Guide to Rights Over Airspace and Subsoil – Second Edition' by Daniel Gatty – Law Brief Publishing).
Following fast on the heels of a TOLATA trial, Steven Woolf succeeded in obtaining substantial negotiated damages for an interference with a right of way, where the way continued to exist, but you would need Chitty Chitty Bang Bang to gain access to the garage following the lowering by the owner developer of the ground level by 4 feet, in order to accommodate duplex as opposed ordinary ground floor apartments.
Carl Brewin had a lovely trip to Leeds to deal with a mandatory injunction, in addition to advising on the registration gap, break clauses, and the perils of failing to comply with HMO licensing.
Lina Mattsson is looking forward to celebrating Christmas in Sweden after a manic December – a month of commercial and residential dilapidation claims, forfeiture and easements. She is ready for glögg and lussebullar.
Court of Appeal success for John de Waal KC and Gemma de Cordova in a case concerning a landlord's compliance with the obligation to serve offer notices pursuant to section 5 of the Landlord and Tenant Act 1987 and the correct interpretation of section 5A where section 5(3) applies – FSV Freeholders Limited v SGL 1 Limited [2023] EWCA Civ 1318
John de Waal KC and Gemma de Cordova obtained a favourable result in the Court of Appeal for their client ("the Respondent"), who acquired the freehold title from the original landlord, who had at first instance been found to have complied with the requirements of sections 5 and 5A of the Landlord and Tenant Act 1987 ("LTA 1987"). This was the tenants' second appeal.
Click here to read the full article by John de Waal KC and Gemma de Cordova.
Smith v Royal Bank of Scotland plc – a fresh wave of unfair relationship claims?
The recent Supreme Court decision in Smith and another v Royal Bank of Scotland plc [2023] UKSC 34 provides important guidance on the assessment of when a relationship will be regarded as "unfair" within the context of the Consumer Credit Act 1974 ("the 1974 Act") and the time limit for applying to the court under section 140B of the 1974 Act.
Read the full article by Priya Gopal here.
Renting Homes (Wales) Act 2016 – reflections one year on from its commencement
Nadolig Llawen, annwyl ddarllenydd! The Renting Homes (Wales) Act 2016 ("the Act") came into effect on 1 December 2022, the Christmas present all housing practitioners who work in Wales were delighted to receive after many years of delay. Where are we one year on?
Click here to read the full article by William Golightly.
Did you miss? Duchess of Bedford House TRM Co Ltd v Campden Hill Gate Ltd [2023] EWCA Civ 1470
The appellants were underlessees of flats in a mansion block in Holland Park ("the Block"). They appealed against a declaration that they did not have a right to park on a private road adjacent to their Block. The Respondent was the head lessee of the neighbouring block of flats and the private roads pursuant to a headlease having been granted in 1969. The freehold of the whole estate was held by a third party.
Read the full article by Lina Mattsson here.
Events and podcasts
Property Litigation Watch Podcast
Laura Tweedy joins Laura Odlind, a Partner within Mishcon de Reya's Property Litigation Group for a comprehensive examination of the anticipated reforms in the private rented sector.
During this podcast, the two experts delve into the Renters (Reform) Bill, discussing its origins, the significant alterations it suggests for both landlords and tenants, and the projected timeline for its implementation.
Click here to listen.
Upcoming events
Our J2J Property Programme will start in the first quarter of 2024 – look out for the dates!
"2 minutes with" James Hall
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