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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