Introduction
Welcome to the February 2022 edition of the Property Newsletter from Gatehouse Chambers.
This month John de Waal QC looks at the Court of Appeal's revisiting of 'actual occupation' in the context of overriding interests under paragraph 2 of Schedule 1 to the Land Registration Act 2002, in Pennistone Holdings Ltd v Rock Ferry Waterfront Trust [2021] EWCA Civ 1029.
In the second part of their two-part series Katrina Mather, Lina Mattsson and Jonathan Titmuss give an update on passage of the Commercial Rent (Coronavirus) Bill, how the arbitration scheme may work, potential problems, and what steps landlords and tenants may want to take now to protect their position before the Bill becomes law.
Peter Petts considers whether a demand for rent should be treated with the same strictness as accepting rent when it comes to the right to forfeit a lease.
Byroni Kleopa also spins the wheel of questions for us.
The next newsletter will be at the start of March.
Carl Brewin - Editor
Activity report - a selection of what some of us have been up to this month
Laura Tweedy has been really enjoying acting as a mediator in property disputes and is training as an arbitrator this month too. As for the barristering. Laura has been checking out the Commercial Rent (Coronavirus) Bill 2022 and the implications for enforcement of commercial arrears, as well as dealing with some injunctions, boundary disputes and gritty anti-social behaviour.
James Hall has been advising on pesky restrictive covenants relating to the rebuilding of a high-end residential property (and the possible professional negligence claim that may flow therefrom, against previous solicitors) and has also been instructed in relation to another off-plan property purchase/bodged build problem.
Jamal Demachkie had an interesting trial on the appropriate way to calculate damages in lieu of injunctive relief, and has been advising on third party applications for relief from forfeiture.
Daniel Gatty was busy working towards a trial in respect of a £2m mortgage. The rest of his time was spent advising on restrictive covenants, rent reviews and a variety of other topics.
Lina Mattsson has been dealing with various boundaries and easements disputes - pouring over old title deeds, feeling like Sherlock! She is also pleased to have obtained a freezing injunction following a successful trial, avoiding what would otherwise have been a Pyrrhic victory for the client. So far, a great start to 2022!
Andrew Skelly's practice was in the gutter for much of this month. Quite literally, it was a month of advising on drainage ditches and highway drains. Back on dry land, Andrew represented the tenant in the landlord's appeal against a decision that Covid 'ringfenced' arrears should be stayed pending the introduction of the government's promised arbitration scheme. Tune in next month for the result.
David Peachey started and ended January with the same case, having the first and second halves of a part-heard trial. He is just managing to squeeze in an arbitration on the last day.
Brie Stevens Hoare QC's January involved dilapidations, restrictive covenants and easements in and affecting a multi-title commercial site, constructive trusts, proprietary estoppel, conditional contracts and a lovely trip down memory lane to the Rent Acts.
John Clargo's January was varied: a harassment injunction; commercial dilapidations; an application to alter the register (no, not that one, the one at Companies House), termination of common law tenancies and the thorny issue of terminating part only of a lease. Roll on Christmas.
Monty Palfrey spent the first part of January drafting all those pleadings but for a short extension would have fallen due over Christmas and New Year. Thereafter, a number of in-person hearings including two PTRs which each lasted over 5 hours. This didn't happen with video hearings.
Amanda Eilledge has had a busy start to the year in trial for a TOLATA claim and a boundary dispute and has been advising on everything real property related from restrictive covenants to adverse possession of a children's playground.
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 dates in the next couple of months!
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.
Overriding Interests - 'actual occupation' revisited
In Pennistone Holdings Ltd v Rock Ferry Waterfront Trust [2021] EWCA Civ 1029, the Court of Appeal revisited the question of when land is in 'actual occupation' for the purpose establishing an overriding interest under paragraph 2 of Schedule 1 to the Land Registration Act 2002.
Read the full article by John de Waal QC here.
Part 2: the Commercial Rent (Coronavirus) Bill
This is the second part in this two-part series co-authored by members of the Property and Insolvency Teams at Gatehouse Chambers considering some of the practical difficulties with the Commercial Rent (Coronavirus) Bill 2021-22 as currently drafted.
Read the article from Jonathan Titmuss, Lina Mattsson and Katrina Mather here.
Does demanding rent waive the right to forfeit? (was Lord Neuberger always right?)
Peter Petts considers whether a demand for rent should be treated with the same strictness as accepting rent when it comes to the right to forfeit a lease.
Did you see? You may have missed...
Colin White, Frances White v Merwin Amirthan Amirtharaja, Jennifer Shiromi Amirtharaja [2022] EWCA Civ 11, 13 January 2022
Brie Stevens-Hoare QC acted for the successful Respondent in the Court of Appeal in this rectification claim involving adverse possession of a passageway and the case is a reminder to appellants that there is no point in pursuing an appeal based upon the grant of permission on a ground which will not ultimately result in the relief sought.
Christmas Dingbats
The answers to our Christmas Dingbats are here.
- The Queen's Speech
- Silent Night
- Peace on Earth
- Four Calling Birds
- Last Christmas
"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, Byroni Kleopa tried her luck with the wheel.
Q - What was your first job?
A - I sold shoes in a retail store at 16 to save money for university.
Q - If you didn't have to sleep what would you do with the extra time?
A - I would start living in the metaverse and learn how to create NFT's.
Q - If you could spend a day in someone else's shoes whose would they be?
A - Elon Musk because, let's face it, how often do you get to live like a multi billionaire!
To view the full article please click here.
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