Property Newsletter: January 2023

Introduction

Welcome back from the Christmas break to those of us who managed one. We had wonderful news in Chambers before Christmas that property practitioner and member of Chambers, Alastair Redpath Stevens, was appointed as a District Judge on the South East Circuit – congratulations Alastair! We also had two members recommended for Silk in the 2022 competition – amazing news Catherine and David!

With the New Year afoot I thought I would highlight just a few of expected trends and things to look out for in the property legal world in 2023:

• Renters Reform: assured shorthold tenancies and no fault possession look set to be gone by the end of 2023;
• Minimum Energy Efficiency Standard: from 1 April 2023 the MEES will apply to all properties let for the first time, not just new leases;
• Building Safety Act 2022: hopefully we will see most of this vital, yet rather confusing, legislation coming into force this year and for those of you working in the building safety sphere we have the FTT's first remediation contribution order under the Building Safety Act 2022.
• Economic Crime (Transparency and Enforcement) Act 2022: tick tock tick tock, by 31 January 2023 all overseas company land owners are required to have made an application for registration on the register of overseas entities at Companies House;
• Charities Act 2022: provisions of this act affecting charity land owners are due to come into force in spring;
• Nuisance: we await the Supreme Court decision in Fearn and others v The Board of Trustees of the Tate Gallery as to whether nuisance law will be extended. Decision due to be handed down on 1 February 2023;
• Telecoms: regulations are due this year to update to the Electronic Communications Code contained at Schedule 3A of the Communications Act 2003 implementing the Product Security and Telecommunications Infrastructure Act 2022; and
• Rent Repayment Orders: Rakusen was heard in January and judgment is highly anticipated to see what the Supreme Court thinks about rent to rent agreements and how that affects rent repayment orders: Rakusen (Respondent) v Jepson and others (Appellants) – The Supreme Court.

This month we have Jack Dillon's article how to put right mistakes in charge deeds and their registration at the Land Registry and Companies House, and Brie and Morayo share their thoughts on the Supreme Court case in which they appeared, Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retail Ltd [2023] UKSC 2. John Clargo is our guest feature writer for "Have You Missed?" who is looking at recent Court of Appeal authority on common intention constructive trusts.

Heading towards Spring, our team are looking forward to going to MIPIM this year which is, as always, in Cannes. This year's dates are 14-17 March 2023. Get in touch if you are going and would like to meet up.

Now, last but not least, a month or so back I promised a new feature to the newsletter. Well here we have it, an interview by me with a member of our property team. This month the fabulous Carl Brewin. I am taken right back to bar school where we recorded and dissected our advocacy. Enjoy (cringing all the way back to my Right to Light pleading...)

Laura Tweedy – Editor

Activity report – what have our team been up to?

John de Waal KC has been arguing about the admissibility of similar fact evidence in a £10m prof neg claim about a defective lease.

John Clargo finished December 2022 by concluding a nuisance/unlawful alterations trial which was last before the court in October 2021. Well, concluding the evidence anyway: no date yet set for submissions. He started January 2023 by not concluding a breach determination hearing at the FTT. There, not only has the evidence not been concluded, but not even the 1^st witness (despite the other side being barred from taking any part). Otherwise he has been involved in issues relating to registration of options, easements, limitation (both as regards adverse possession and in respect of enforcing judgments), knotty problems involving charging orders and the registration of amended legal charges (at HMLR and Companies House).

Clare Anslow has been busy in court the last few weeks; she particularly enjoyed a short stroll from home to Oxford County Court last week – it made a nice change from being cramped on a train. Clare has a number of hearings in the First Tier Tribunal (which are finally back to being face-to-face) arguing about effective notifications for rent repayment orders.

Jamal Demachkie had a busy month preparing for an interesting 54 Act trial (only to be adjourned last minute) and a long-running ToLATA dispute (only to be adjourned last minute)... plus ça change. He also enjoyed leading a workshop on forfeiture at the Chancery Bar Association Annual Conference.

Laura Tweedy had a lovely time off over Christmas, swimming with wild sting rays in the Cayman Islands and cuddling sloths in Honduras. It was hard to get back to the grind in January (especially with this cold weather, what is that about?!) but she has been enjoying mediating property disputes, advising on the new Welsh landlord and tenant reforms (she's Geordie, not Welsh, but more often gets asked if she's Welsh so feels some kindred spirit) and drafting proceedings in a right to light matter to stave off a light obstruction notice.

Cameron Stocks had a busy start to the month preparing for a 4-day trial concerning the interpretation of an express declaration of trust in circumstances where the key witnesses had lost capacity and were unable to provide live evidence. Alas, due to the joys of the civil justice system, the trial was adjourned due to lack of judicial availability and then immediately settled. In an unexpected twist of events, Cameron then stepped in to cover a colleague's hearing only to subsequently become a potential witness in criminal proceedings following an altercation in the court waiting room! Who said this job wasn't exciting?

Andrew Skelly has started the year back in drains and sewers, advising in a number of cases involving defective drainage on residential developments. He has also been settling objections to a couple of Definitive Map Modification Orders, seeking to resist confirmation of orders which would add public rights of way to the Definitive Map and Statement.

Peter Petts went to see Sir Ian McKellen in Mother Goose. Oh no he didn't! He did and it was very entertaining.

David Peachey concluded a case exactly four years – to the day – after it started, and had a pile of paperwork waiting to welcome him home from a Christmas break.

Daniel Gatty successfully appealed an order that struck out his client's case as long ago as 2019! Daniel wasn't acting when the case was struck out, he hastens to add. That aside, his time has been mainly taken up with restrictive covenants, easements and commercial L & T disputes.

When not in Court, Monty Palfrey has been advising on an interesting breach of quiet enjoyment case and sorting out how to enforce a couple of Tomlin Orders agreed by others.

Lina Mattsson has started 2023 with yet more trials, this time arguing about prescriptive easements and joint tenancies being severed. Swimming in the sea in Lanzarote now seems like a distant memory.

Gemma de Cordova was delighted to (finally) enjoy a lovely big family Christmas after two years of Covid-related cancellations! She was relieved to get 2023 off to a successful start when the appeal against a possession order she had secured for her client last year, was dismissed on all four grounds. Gemma is ending the month busily drafting and advising in disputes concerning urban trespassers; guarantors in commercial leases; rights of way; and termination of licence agreements.

Amanda Eilledge has had a very busy month advising on alteration of the property register due to a mistake; novation and the liability for dilapidations under a commercial lease and ending with an arbitration dealing with damp, floor slabs and underpinning.

Events

J2J 'Laying the Foundations' Webinar: The Land Register – Is it Conclusive?

In this webinar, Priya Gopal, Josh Griffin and William Golightly will explore:

• The circumstances in which alteration/rectification can be ordered
• Priorities
• Overriding interests
• Fraud in the context of land registration

Property Brew: the Court of Appeal's 2022 decision in Hudson v Hathway

A discussion between Daniel Gatty and William Golightly of Gatehouse about the issues raised by the Court of Appeal's 2022 decision in Hudson v Hathway.

• The surprisingly informal formal disposition of equitable interests
• Whether detrimental reliance is still required for common intention constructive trusts

Please register your interest by emailing events@gatehouselaw.co.uk.

Gatehouse Chambers on Demand

You can catch up on our previous webinars and Brews by visiting the insights page on our website.

MIPIM 2023

The team are looking forward to going to MIPIM this year in Cannes. The event will run from 14-17 March 2023. Please feel free to get in touch if you would like to meet up.

Supreme Court finds service charge certificate not conclusive on liability (Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retail Ltd)

The Supreme Court has handed down its decision in Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retail Ltd [2023] UKSC 2. In a majority judgment given by Lord Hamblen, the Supreme Court dismissed appeal of Blacks Outdoor Retail Ltd (Blacks) against the grant of summary judgment, but noted that this does not preclude the possibility of Blacks pursuing a counterclaim in the High Court for the underlying liability for disputed service charge payments.

Morayo Fagborun Bennett and Brie Stevens-Hoare KC, barristers at Gatehouse Chambers, and Usman Roohani, barrister at 4 New Square, appeared on behalf of the Appellant and provide comment on the judgment.

Read the full summary here.

Mending mistakes: Charges, the Land Registry & Companies House

Jack Dillon considers how to put right mistakes in charge deeds and their registration at the Land Registry and Companies House.

Read the full article here.

Did you see? You may have missed...

Hudson v. Hathaway [2022] EWCA Civ 1648, [2022] EWHC 631 (QB

To rely or not to rely on a common-intention constructive trust: an instance of the application of s. 53(1)(c) of the Law of Property Act 1925

Read John Clargo's case summary here.

Appointments

We are delighted to announce that Alastair Redpath-Stevens has been appointed as a District Judge to the South Eastern Circuit, based at Clerkenwell & Shoreditch County Court. Alastair took up his appointment on Friday 16 December 2022. Huge congratulations to Alastair!

Gatehouse Chambers is also busy celebrating David Pliener and Catherine Piercy, both of whom have been recommended for silk. Many congratulations to David and Catherine.

2 minutes with Carl Brewin

Laura Tweedy interviews Carl Brewin for our inaugural '2 minutes with...' series.

Click below to listen.