As our Chair, Kerry Glanville, is taking a well-earned break this week, it falls upon me to reach out with a short blog during these exceptional circumstances. I hope you, your household and families across the country and globe are well and adapting aplomb to the new “norm”. We are indeed living in ‘interesting’ times.
Property litigators are at their best during times of crisis. This one is no different.
These challenging times remind me of a Chinese proverb: “when the winds of change blow some people build walls and others build windmills.” Not only does this real estate theme chime with our industry, but property litigation is at the forefront of troubleshooting COVID-19 problems as we help our clients with creative solutions – adversity drives innovation.
We have had to digest, interpret and advise on Coronavirus Act 2020 (2020 Act) issues overnight. Our former President, Lord Neuberger, regularly used to amplify the ‘law of unintended consequence’. When well-intentioned legislation is rushed through with little scrutiny, there are areas of refinement required. Behind the scenes, your Law Reform Committee (LRC) has worked promptly in concert with the Property Bar Association (PBA) to write jointly to the Master of the Rolls in connection with the new Practice Direction 51Z which was made on 26th March 2020. They point out that the Practice Direction not only stays forfeiture proceedings and possession actions against residential tenants but also, for example, squatters eviction proceedings. This does not appear intended by the 2020 Act, and letter requests urgent clarification of this. See the PLA and PBA’s joint letter here.
Further, the LRC has very recently put to the Ministry of Housing, Communities and Local Government (MHCLG) a number of questions and points requiring clarification regarding the protection of business tenancies from forfeiture for non-payment of rent in the 2020 Act. This includes which payments and leases are covered by the moratorium, whether parties can forfeit by consent and possible extension of the moratorium to other jurisdictions and remedies. Click here for a copy of the PLA’s questions and here for MHCLG’s responses setting out MHCLG’s aims and objectives for the policy.
Where client instructions allow, I am also proud to see simple acts of kindness amongst members – from accepting the service of e-notices during lockdown through to greater nuance in agreeing directions and preparing for virtual hearings. For the courts to achieve “business as usual”, we must play (and are playing) our part with collaboration.
A big shout out to Tim Power / TPS, your brilliant Administrators and your Education & Training / Junior / Regional Committees who have worked tirelessly to ensure our events calendar is ready to resume once lockdown restrictions have been lifted. When it does, one of the things we will do at our first formal event is present Tom Dobson (Farrer & Co LLP) with the trophy for winning the Alan Langleben Memorial Essay Competition this year. Ian Whitehead (Winckworth Sherwood LLP) was a very creditable runner-up. Our judges, Vivien King and Suzanne Lloyd Holt, described their entries as “thoughtful, innovative and, perhaps above all, engaging”. Tom’s essay, which looks under the bonnet of the S Franses decision, will be published in the Estates Gazette in Autumn 2020, and I commend it you all. Congratulations, Tom!
It is fair to say that we all saw our 25th anniversary going differently in our minds. However, celebrations are not limited to champagne toasts and eating canapés. Our time for this will come soon enough. I can think of no more appropriate way to mark this anniversary milestone than by our members demonstrating our relevance to the market, the judiciary and government during another time of crisis. I could not be more proud.
Stay safe, stay positive and please stay in touch.