How will the judicial approach to forfeiture change once the temporary Coronavirus moratorium measure is lifted?
Andrew Walker QC considers the courts’ approach to waiver of the right to forfeit, and how the approach to forfeiture might change after the lifting of coronavirus property measures.
This was delivered as a Seminar for White Paper's Annual Commercial Property Leases Conference in March 2021, and does not take into account subsequent statutory interventions.
Alteration or Rectification: The “Malory 2” Conundrum Revisited In Northern Powergrid (Yorkshire) Plc v Leatham Estates Limited (REF 2019/0649 (FTT))
James Hanham considers the question of whether or not a claim to alter the Register on the grounds of mistake qualifies as one for “alteration” or for “rectification” by reference to current case law.
Break Clauses – Grey Areas and Unresolved Arguments
In this Seminar Paper (delivered in November 2019), Andrew Walker QC discusses problems with break clauses as regards vacant possession, reinstatement obligations, and the removal of tenant’s chattels and fixtures, and comments on the potential impact of the forthcoming RICS Code for Leasing Business Premises.
Liability under GAGAs clarified (EMI Group v Prudential Assurance)
In this article, Maxim Cardew analyses the recent decision in EMI Group Ltd v Prudential Assurance Co Ltd  EWHC 2061 (Ch) in which he and John McGhee QC appeared successfully on behalf of Prudential (the landlord) against EMI (the guarantor). The court held that a guarantee (GAGA) of an authorised guarantee agreement (AGA) was valid and enforceable, despite the dissolution of the original tenant that had provided the AGA, and clarified the principles of severance applicable in the context of guarantees that would otherwise fail to comply with the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) as a result of either purporting to guarantee the liabilities of subsequent tenants or allowing such a liability to revive at some point in the future after a first assignment (eg on an assignment back). The court also considered what conditions needed to be satisfied for a guarantor to be released from its obligations ‘to the same extent’ as a tenant, as required by LT(C)A 1995.
This article was first published by Lexis®PSL on 10/08/2020.
Commercial property valuations and rental values after Covid-19 - challenges and opportunities
Following publication of new RICS Covid-19 valuation assistance to surveyors, Andrew Walker QC considers the current difficulties for commercial property valuations, and landlords’ prospects of maintaining rental values for commercial properties in badly hit sectors of the economy.
The Ides of July (15th) – now or never to avoid commercial real estate insolvencies?
There may now be little time for the voluntary re-scheduling of lease payments due on and after the June 2020 quarter day. Andrew Walker QC explores the reasons why.
Dreams analysis; sale contracts, completion and vacant possession
Andrew Walker QC analyses the recent decision in Dreams v Pavilion Property Trustees, and considers the nature of obligations to be complied with on completion of a contract of sale and purchase.
Property in the pandemic: Update 15 May 2020
Since the original “Property in the pandemic” was written, on 20 April 2020, there have been further major developments in practice and procedure; even more significantly, the government has again promised wide-ranging reforms to insolvency law that are likely to have a dramatic effect on real property litigators.
Focusing once more primarily on commercial landlord and tenant disputes, Richard Fowler surveys how the Covid-19 practice directions and guidance have changed in the last month, and how the courts are responding to them; explains what the government is now proposing by way of further legislation; and considers how the litigation landscape is likely to look for commercial property owners and tenants in the months to come.
Property in the pandemic: A toolkit for commercial real estate litigators
A month into the lockdown, what is the state of play in real property litigation? What developments can we expect in the near future?
Focusing on commercial landlord and tenant disputes, Richard Fowler surveys the Covid-19 legislation, protocols and guidance; considers what the courts are currently able to do; and identifies the themes, in both commercial and insolvency law, that are likely to dominate the field in the months to come. It is intended to update this article periodically to reflect further changes in this fast-moving subject.
Joint Ventures: A Protean Concept
Joint venture disputes often hinge on case-specific factors in the relationship between venturers; however, distinct themes are also evolving in the case law, permitting of navigation through the issues.
With reference to the recent case of Russell v Cartwright  EWHC 31 (Ch), James Hanham discusses the important developing principles relating to fiduciary duties and obligations of good faith.
Disposals in breach of contractual rights – don’t forget the tort
Parties to a contract dealing with rights over an asset may agree that the asset must not be transferred to anyone else except in particular circumstances. What happens if the asset is transferred to someone else in breach of those restrictions?
Can a claim be made against the transferee? Where the asset is land, lawyers tend to look for a remedy in property law, but that is not the whole story. If the asset is not land, or if property law cannot help, there can still be a claim. Andrew Walker QC discusses one of the main alternatives in the law of tort, and the potential for obtaining an injunction to unravel a wrongful transfer.
Forfeiture beyond the Covid-19 moratorium
Looking beyond the current moratorium, what place will forfeiture have in the post Covid-19 commercial real estate market?
Rob Nicholson of Ashfords LLP and Andrew Walker QC of Maitland Chambers look to the future, considering the fine balance between the interests of landlords and tenants, and how the Government or the courts might mitigate the effects of the pandemic.
Implied terms that consent is “not to be unreasonably withheld”. Time to reassess?
Where does the law now stand on implying a term that consent “is not to be unreasonably withheld”, if a covenant in a lease or a restrictive covenant does not say this expressly?
Drawing on commercial cases, this article by Andrew Walker QC seeks to inform, challenge, and perhaps provoke further thought.
A perilous enterprise
Paul Clarke explores the challenges of establishing that trust obligations have arisen after the failure of a joint venture
In the recent Court of Appeal decision earlier in 2018 in Generator Developments Ltd v Lidl UK GmbH, Lidl had purchased in its sole name a site at Wates Way Industrial Estate, Brentwood, Essex on which it intended to build a supermarket, and Generator, a property development company, claimed that the purchase was a joint venture and that Lidl held the site on trust for both parties.
Source: This article was first published in Trusts and Estates Law & Tax Journal (October 2018) and is also available at lawjournals.co.uk
Property Law for Housing Lawyers - Sale and Rent Back Schemes
This seminar looks at "What is a sale and rent back scheme?".
Accommodating Rights of Way
Source: Property Litigation Assocation Website
The light stuff
A recent rights to light case demonstrated how property rights are treated differently than contractual rights. John McGhee QC reports.
Source: The Lawyer
Nigel Thomas has had his article "After Etridge" published in Trusts and Estates Law and Tax Journal (2014)
Source: Trusts and Estates Law and Tax Journal (2014) No 154 March