UK: Property Newsletter: March 2023 (Video)

Introduction

Welcome to the Gatehouse Chambers Property Newsletter. We've had a wonderful month sunning ourselves in Cannes and welcoming in our new construction silks.

This month we have articles from Lauren Godfrey on injunctions and David Peachey on the recent case of Goldhill Finance Limited v Smyth [2023] EWHC 362. Our two minute interview is with the fabulous John Clargo where we find out that his acting abilities were fortunately cut short so the bar was able to nab him!

For those to celebrate, hope you have a wonderful and relaxing Easter break, and actually manage to get some time off.

In keeping with the theme of the last few newsletters, please find below a legal update on Building Safety and Renters Reform:

Building Safety Act:

• the government has outlined the Responsible Actors Scheme which is hopefully going to be in force by summer, by which it will prohibit residential property developers who refuse to sign developer remediation contracts from operating in the English market. Secondary legislation is due to be pushed through Parliament before the summer recess (which begins on 20 July 2023): https://www.gov.uk/government/publications/responsible-actors-scheme
• the Welsh Government has pursued a similar commitment, announcing a Developers Pact with the Home Builders Federation: https://www.gov.wales/ambitious-building-safety-programme-will-make-residents-feel-safe-and-secure-their-homes
• the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (SI 2023/275) come into force on 6 April 2023

Renters Reform:

• the Bill has been promised by September 2023, despite earlier assurances it would be sooner. If we consider there may be a year back and forth in parliament and the commons, we are looking at September 2024 for legislation with provisions taking effect 6-12 months after that
• it looks like the government is seriously considering its stance on non purpose built student lettings, which was troubling for many landlords, but watch this space: https://publications.parliament.uk/pa/cm5803/cmselect/cmcomloc/624/report.html#heading-1

Laura Tweedy – Editor

Activity report – what have our team been up to?

James Hall has again been advising on the thorny issue of overage agreements and their interpretation – sadly, always a fertile source of dispute.

Charlotte John has a range of interesting instructions at the moment involving difficulties with the interpretation of wills and trusts, and the consequences for the ownership of real property. Last month also saw the publication of the Dictionary of TLATA and Inheritance Act Claims which Charlotte was a contributor to alongside Cameron Stocks. Charlotte has been busy with other writing projects. You can read her article on the recent Court of Appeal decision in Hudson v Hathway, which Charlotte describes as a 'need to know' case, on her blog here.

John Clargo has been grappling with such things as tie-marks and mereing (as well as the usual hedging, yew trees and posts) in the trial of a determined boundary dispute and is pleased to have appeared in another (increasingly rare) Rent Act 1977 case. His paperwork has included advising on amending charges registered at Companies House (next stop HMLR), commercial dilapidations and ancient charging orders.

William Golightly has (also) been kept busy with Rent Act 1977 tenancies, as well as with their rural cousin, Rent (Agriculture) Act 1976 tenancies. In a much younger legislative framework (a spritely four months' old now post-commencement), William has also been dealing with trespassers under Renting Homes (Wales) Act 2016 regime.

Brie Stevens-Hoare KC has been focused on a wide range of activities as well as MIPIM this month. She's been thinking about boundaries, a bit of fraud and land registration, the complexities of communal heating systems in leases that only partially provided for them and a juicy bit of constructive trusts and proprietary estoppel. MIPIM was full on although she did manage to squeeze in a fabulous walking tour covering the history and glamour of Cannes. After that week it was suggested, she would take a rest or at least a vow of silence – somehow the editor doubts that.

This month Jamal Demachkie has mostly had his advising hat on... development agreements, lease constructions and a boundary agreement. He also enjoyed seeing so many familiar faces when speaking at the PLA Keble Conference.

Having been involved in several CCMCs this month, Andrew Skelly has been marvelling at the hugely different approaches to costs management, and what is meant by 'proportionality', taken by Deputy District Judges, District Judges and Circuit Judges. Otherwise, Andrew has been in advice mode – drainage, rights of way, disrepair and misrepresentation, with a dose of nuisance for good measure.

Carl Brewin has been acting and advising in a number of neighbour disputes; some new, some old and a few part heard, in addition to responding to some interesting proprietary estoppel arguments in relation to allegedly mis-sold mortgages. The week off in between was very much appreciated.

Lina Mattsson has spent March in the Land Registration division of the FTT arguing about adverse possession and resulting trusts. She has also managed to settle two of her long-running cases at mediation. Lina is now looking forward to a week on the beach building sandcastles with the kids over the Easter holidays.

Daniel Gatty enjoyed the sunshine at MIPIM for a couple of days and enjoyed staying in the south of France for a few extra days even more. That aside, Daniel has been doing a bit of sitting, a bit of mediating, a bit of resisting security for costs and a lot of advising about his usual miscellany of property matters.

Amanda Eilledge was delighted to win her arbitration dealing with damp, floor slabs and underpinning. Now for the costs battle. A short break at the thermal springs in Budapest next week will be a welcome respite from drafting the defence to a 50 page professional negligence claim arising out of a property fraud.

In National Highways Ltd v Persons unknown and others [2023] EWCA Civ 182, the Court of Appeal overturned a High Court judge's refusal to grant summary judgment in claims for final injunctions in circumstances where the defendants had failed to engage with the proceedings by either filing defences or any evidence in opposition to the claims. The Court of Appeal criticised the first instance judge's approach as impermissible speculation as to what defences might be advanced at trial.

Click here to read the full article by Lauren Godfrey.

Raising unfairness in an unfair way